Mr v. D. Salunke
Legal Reasoning
20wp-10245-2024not conducted in accordance with law.26.Perusal of the memorandum of appeal will demonstratethat the respondent/Head Master has not averred that he wasnot gainfully employed elsewhere. It undisputed that therespondent/Head Master has also not filed any separateaffidavit in this regard. It is well settled by a catena ofjudgments of the Hon’ble Supreme Court and this Court thatthe initial burden of proving that he was not gainfullyemployed in the period intervening the date of terminationand reinstatement in service is on the employee. The burdenof proof although is very light, the employee is required tomake a statement either in the memorandum of appeal or byfiling a separate affidavit that he was not gainfully employedduring the relevant period. Once, the employee makes suchstatement in the memorandum of appeal or by filing separateaffidavit, the burden shifts on the employer to prove thatemployee was gainfully employed during the relevant period.However, the burden shifts on the employer only afteremployee makes statement as aforesaid. In the case at hand,as mentioned above, no such statement was made. 21wp-10245-202427.It appears from the judgment of the learned Tribunalthat an oral statement was made by the respondent/HeadMaster that he was not gainfully employed since the date oftermination of his services during the course of final hearingof the appeal. Such statement could not have been reliedupon by the Tribunal. The statement was also made at thestage of final arguments. It is not clear as to whether the saidstatement was made in the presence of any representative ofthe petitioner/management or its Advocate.28.The learned Advocate for the respondent/Head Masterhas placed reliance on judgment of the Hon’ble SupremeCourt in the matter of Mahadeo Krishna Naik. However,perusal of the said judgment and particularly paragraph 44thereof will demonstrate that the legal position that theemployee has to plead the fact of his non employment stillholds good. Hon’ble Supreme Court has referred andreaffirmed the principle laid down in this regard in the matterof Deepali Gundu Surwase vs Kranti Junior Adhyapak & Ors,reported in (2013) 10 SCC 324.29.It is apparent that the respondent/Head Master did not
Arguments
1wp-10245-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10245 OF 2024The President,Samajseva Shikshan Sanstha,Nai Chakur, Tq. Omerga,Dist. Dharashiv.…..PETITIONER(Ori. Respondent no.1)VERSUS1.Satyapramod Govindrao Kulkarni,Age: 45 years, Occu. : Service,R/o Kasgi, Tq. Omerga,Dist. Dharashiv.…..RESPONDENT(Ori. Petitioner)2.The Education Officer (Primary)Zilla Parishad, Dharashiv.…..RESPONDENT(Ori. Respondent no.3)3.The Headmaster,Shri Sharadchandraji Pawar PrathmikVidyalaya, Nai Chakur,Tq. Omerga, Dist. Dharashiv…..RESPONDENT(Ori. Respondent no.2)______________________________________________________Mr. V. D. Salunke, Advocate for the PetitionerMr. A. V. Patil (Indrale), Advocate for the Respondent No.1______________________________________________________CORAM :ROHIT W. JOSHI, J. RESERVED ON :16TH JULY, 2025 PRONOUNCED ON:28TH JULY,2025 2wp-10245-2024JUDGMENT :-.The respondent no.1 was appointed as AssistantTeacher with Shri Sharadchandraji Pawar Prathmik Vidyalaya,Nai Chakur (hereinafter referred to as school), which is aprivate school, run by Nai Chakur Samajseva Shikshan Santha(hereinafter referred to as society).2.The respondent no.1 was initially appointed on the postof Assistant Teacher with Shri Sharadchandraji PawarPrathmik Vidyalaya, which is a private school, run by thepetitioner/society. The respondent no.1 was promoted to thepost of Head Master in the said school on 05.07.2004, andwas working on the said post since then.3.According to the petitioner, there were severalcomplaints against the respondent/Head Master, his work wasnot up to the mark and there were several complaints, due towhich the management decided to conduct inquiry againstrespondent/Head Master. The respondent no.1 was thereafterplaced under suspension vide suspension order dated30.04.2019. After holding enquiry, the services of therespondent no.1 were initially terminated vide termination 3wp-10245-2024order dated 26.08.2019.4.The respondent no.1 preferred an appeal under Section9 of the The Maharashtra Employees of Private Schools(Conditions of Service) Rules, 1981 (hereinafter referred to asMEPS Rules), being appeal no.48 of 2019. The said appealcame to be partly allowed by the learned School Tribunal,vide judgment dated 14.12.2021. The termination orderdated 26.08.2019 was set aside on the ground that themanagement had failed to follow the procedure prescribed forconducting inquiry under Rules 36 and 37 of the The MEPSRules, 1981, as also, on the ground of failure to comply withthe principles of natural justice. While setting aside the orderof termination, the Tribunal granted liberty to themanagement to hold fresh inquiry against therespondent/Head Master.5.The respondent/Head Master challenged the saidjudgment and order passed by the learned Tribunal to theextent it granted liberty to the management to hold freshinquiry by filing a petition before this Court being WritPetition No.3764 of 2022. The said petition came to be 4wp-10245-2024dismissed vide judgment dated 12.04.2022. 6.Thereafter, the petitioner issued statement ofallegations calling upon the respondent no.1 to offer hisexplanation with respect to allegations levelled against him.Thereafter, on 24.03.2022, chargesheet came to be issued bythe President of the petitioner/society to the respondent no.1.The respondent no.1 filed reply dated 02.04.2022 in responseto the chargesheet. Pursuant to the said chargesheet, theinquiry was completed and report dated 17.08.2022 wassubmitted under the signature of said Awardee Teacher andConvener. The Inquiry Committee held that eighteen out oftwenty six charges were proved against the respondent/HeadMaster and recommended termination of services of therespondent/Head Master. 7.The respondent/Head Master did not appoint hisnominee on the Inquiry Committee, although, he was asked toappoint his nominee and also did not participate in the inquiryproceeding. The respondent/Head Master raised grievancewith respect to non payment of subsistence allowance andexpressed inability to participate in the inquiry proceeding. 5wp-10245-2024The services of the respondent/Head Master came to beterminated again vide order dated 20.08.2022.8.The respondent/Head Master challenged the said orderof termination dated 20.08.2022 by filing appeal before thelearned School Tribunal, being appeal no.43 of 2022. Therespondent/Head Master raised several grounds in thememorandum of appeal including the inquiry being vitiatedon account of failure on the part of the management to makepayment of subsistence allowance as also failure to complywith mandate of Rules 36 and 37 of the MEPS Rules. Therespondent/Head Master raised a contention that thePresident of the petitioner/society, had issued thechargesheet, which is illegal. 9.The Management filed reply opposing the appeal. Afterhearing the matter, the learned Tribunal has allowed theappeal vide judgment and order dated 12.08.2024. Thetermination order dated 20.08.2022, came to be quashed andset aside and the management was directed to reinstate therespondent/Head Master in service with continuity of service,full back wages and all other consequential benefits. 6wp-10245-202410.The learned Tribunal did not find favour with thecontention raised by the respondent/Head Master that theinquiry was vitiated on account of failure on the part of theManagement to make payment of subsistence allowance. Thelearned Tribunal found that the chargesheet issued againstrespondent/Head Master, which was issued by the Presidentof the petitioner/society was defective. It is observed that thePresident of the management was also the Convener andtherefore, the chargesheet was defective and since inceptionof the inquiry, which is done by issuance of chargesheet wasitself defective, the entire inquiry was vitiated. The learnedTribunal has also held that the chargesheet was issued by thePresident, who was also a Member of the Inquiry Committee,which resulted in breach of principles of natural justice in asmuch as the prosecutor himself became the Judge.11.Having held that the termination order was bad in law,the learned Tribunal observed that the respondent/HeadMaster had made oral statement before it that he was notgainfully employed elsewhere since the date of his terminationand in view of this statement, the learned Tribunal has held 7wp-10245-2024that the respondent/Head Master was entitled to full backwages.12.Mr. V. D. Salunke, the learned Advocate for thepetitioner contended that the findings recorded by theTribunal are completely unsustainable. He contends that thelearned Tribunal has erred in properly interpreting theprovisions of Rules 36 and 37 of the MEPS Rules and applyingthe same to the facts of the case. He contends that since,inquiry was being held against a Head Master, it was astatutory compulsion that the President should be a Memberof the Inquiry Committee and also its Convener. He contendsthat the chargesheet is also required to be issued by thePresident since inquiry was being held against Head Master.He criticises the findings and observations by the learnedTribunal holding that the inquiry was vitiated on the groundthat the President was Convener and Member of the InquiryCommittee. As regards back wages, the contention of Mr.Salunke is that the respondent/Head Master did not make anyaverment in the memorandum of appeal that he was notgainfully employed after his termination while the appeal was 8wp-10245-2024pending and was therefore not entitled to any back wages. Heplaced reliance on Namdeo Vanji Bachav Vs. Dhule DistrictCentral Co-operative Bank Limited, reported in 2014 (4)Mh.L.J 768 and Vidya Vikas Mandal Vs. The EducationOfficer, reported in 2007 (3) Mh.L.J 801 to support hiscontention. He contends that the respondent/ Head Masteralso did not file any separate affidavit in this regard. Hefurther submits that a mere oral statement allegedly made atthe stage of final hearing of the appeal, will not be sufficientto hold that the respondent/Head Master has discharged theinitial burden of proof that he was not in gainful employmentduring pendency of the appeal.13.Mr. Salunke makes a submission in the alternative thatsince, termination order is set aside on the ground that theinquiry was vitiated, the learned Tribunal ought to havegranted liberty to the petitioner to conduct fresh inquiryagainst the respondent/Head Master. He contends that therespondent/Head Master cannot derive any benefit fromtechnical defects in the inquiry held against him. He arguesthat it will not be in interest of justice to allow an employee 9wp-10245-2024against whom there are serious allegations of misconduct tobe reinstated in service only because the inquiry is held not tobe conducted in accordance with law. He places reliance onthe judgment of this Court in the first round of litigation insupport of his contention. 14.In response to the alternate submission made by Mr.Salunke, that on inquiry found to be defective, the Tribunalcould not have ordered reinstatement in service and againliberty ought to have been granted to conduct inquiry againstthe respondent/Head Master, Mr. Patil contends that such acourse can be adopted only once. He contends that if themanagement does not conduct inquiry in accordance withlaw, even on second occasion, then, the matter cannot beremanded back again granting permission to conduct freshinquiry. He has placed reliance on Head Master, Vivek Vs.Alka Namdeo Khalekar, reported in 2017(1) MH.L.J 105 andMadhav Rajendra Narhare Vs. Secretary Banjara Jan-JagrutiMandal, reported in 2022(3) MH.L.J 38 in support of thiscontention.15.With respect to merits of the matter, Mr. Anand Patil 10wp-10245-2024(Indrale), the learned Advocate for the respondent/HeadMaster contends that the inquiry was completely vitiated sincethe chargesheet was not issued by the management, but bythe President of the management. He contends that theissuance of chargesheet, which is the first step in holdingdepartmental inquiry itself is flawed and therefore, the entireinquiry is vitiated. As regards back wages, he contends thatthe statement made by the respondent/Head Master beforethe Tribunal was sufficient to discharge the initial burden ofproving that the respondent/Head Master was not gainfullyemployed from the date of termination of service till thedisposal of appeal. Mr. Patil has relied on a judgment ofHon’ble Supreme Court in the matter of M.S.R.T.C. Vs.Mahadeo Krishna Naik, reported in AIR 2025 Supreme Court1172.16.It is undisputed that the respondent/Head Master wasworking on the post of Head Master while his services wereterminated. The constitution of an Inquiry Committee isprovided under Rule 36(2) of the MEPS Rules. Thecommittee consists of three members. In case where inquiry is 11wp-10245-2024to be held against a Head Master, the Inquiry Committeecomprises of the President of the management, one Memberto be nominated by the delinquent Head Master and oneMember chosen by the present President of the managementfrom the panel of Head Masters on whom State/Nationalaward is conferred. Thus, in view of the statutory mandate,President of the management has to be necessarily a Memberof the Inquiry Committee. In view of Rule 36(5), theconvener of Inquiry Committee also should be the President, ifthe Inquiry is to be held against a Head Master. Thus, wheninquiry is required to be held against Head Master, theConvener and one of the Members of the Inquiry Committeehas to be the President. The inquiry cannot be said to bevitiated only because the President happens to be Convenerand one of the Members of the three Members InquiryCommittee. Since, that is mandate of the statute, thecontention of Mr. Salunke that inquiry will not be vitiated onthis count needs to be accepted.17.In the present case, the chargesheet against therespondent/Head Master is issued by the President. Rule 12wp-10245-202437(1) of the MEPS Rules provides that chargesheet containingspecific charges is required to be prepared by themanagement. The term ‘management’ is defined underSection 2(12) of the MEPS Act. In case of a private School,the management means body of persons administering theSchool. The management in the present case is a society andas such, the Executive Committee of the society will be themanagement. It is not in dispute that the chargesheet isissued under signature of the President. It is necessary toexamine as to whether the President has merely signed thechargesheet as a representative of the Management or hashimself framed and issued the chargesheet. It is necessary torefer to pleadings of the Management in this regard. It isstated in paragraph 13 of the written statement thatchargesheet in the present case was sent by the President ofthe management to the respondent/Head Master. It iscategorically stated that in case of an inquiry against HeadMaster of a School, chargesheet is required to be issued by thePresident of the management(trust). It is further categoricallystated that issuance of chargesheet by the President is incompliance of Rule 37(1). Moreover, the contention of the 13wp-10245-2024respondent/Head Master that the chargesheet is required tobe issued by the management is denied by the petitioner. It isthus clear from the pleadings in the written statement itselfthat the chargesheet is issued by the President alone. It is notthe case of the petitioner that chargesheet is prepared by themanagement. Since, the management of the concerned schoolis a trust, the Management will comprise of all the trustees i.e.members of managing body in view of the definition of theterm ‘management’ as defined under Section 2(4). There isthus, clear breach of mandate of Rule 37(1) which is apparentfrom pleadings of the petitioner.18.It will be pertinent to mention here that whenever amanagement decides to hold inquiry against a Head Master inrelation to major penalty, the President of the management isrequired to communicate to the Head Master statement ofallegations calling for a written explanation from him. ThePresident is required to consider the written explanationtendered by the Head Master and if the same is not found tobe satisfactory, he has to place it before the management forits consideration. The decision to hold an inquiry is required 14wp-10245-2024to be taken by the Management. This is the scheme of Section36(1) and (2) of the MEPS Rules. Rule 37(1) provides thatManagement shall prepare the chargesheet as required to beread in conjunction with Rule 36(1) and (2). It is thus clearfrom the scheme of the Rules that the decision to hold inquiryis required to be taken by the Management and chargesheetfor holding inquiry is also required to be issued by theManagement. The provisions have been held to be mandatoryin a catena of judgments of this Court. A copy of chargesheet,which is filed on record indicates that there is no reference toany resolution by the management regarding framing orapproval to the contents of chargesheet. There is nodocument on record to indicate that the chargesheet is framedor approved by the management. Although, the chargesheethas to be dispatched under signature of president, it has to beframed by the management. Since, there is a breach ofmandatory condition of law, the inquiry held against therespondent/Head Master is completely vitiated. The order oftermination which is a consequence of such inquiry obviouslycannot be sustained and is rightly quashed and set aside bythe learned Tribunal. 15wp-10245-202419.The appellant has alleged in paragraph 6 of the appealthat decision to hold inquiry was taken by the managementwithout considering his reply, issued in response to thestatement of allegations issued by the President vide letterdated 24.03.2022. The appellant has stated that the letterissuing statement of allegation dated 24.03.2022 was receivedon 26.03.2022 and that he had replied to the same on02.04.2022.20.Perusal of paragraph 26 of the written statement willindicate that the statement of allegation as contemplatedunder Rule 36(1) was issued by the President on 24.03.2022and the management has taken decision to conduct inquiryagainst the respondent/Head Master vide resolution dated27.03.2022. Thus, within a period of three days from date ofissuance of statement of allegations, decision to hold inquiry istaken by the management. 21.It will also pertinent to mention that the Head Master isentitled to a seven days notice for replying to the statement ofallegations issued under Rule 36(1). It is apparent fromdocuments filed on record by the petitioner that the statement 16wp-10245-2024of allegations was issued on 24.03.2022 and within period ofthree days, thereafter, on 27.03.2022 resolution to conductinquiry is passed. The resolution is passed before 02.04.2022,i.e. the date on which the respondent/Head Master issuedreply to the statement of allegations. The management has notconsidered explanation offered by the respondent beforedeciding to hold inquiry. Thus, decision to initiate inquiryitself is taken in breach of mandate of Rules 36(1) and (2).22.It will be pertinent to mention here that the aforesaidaspect as regards breach of Rule 36(1) and (2) is notconsidered by the learned Tribunal. However, the facts on thebasis of which conclusions drawn are a matter of record. Infact, the pleadings and documents filed on record by thepetitioner/management themselves are sufficient to concludethat the inquiry was initiated in breach of mandate of Rules36(1) and (2). Since, this is a second round of litigation andthe respondent/Head Master is out of employment, the saidissue is decided for the first time in a Writ Petition, which isnormally not done. The facts on the basis of which conclusionregarding non compliance of Rules 36(1) and (2) is drawn are 17wp-10245-2024emerging from the pleadings and documents ofpetitioner/management is also a relevant consideration forrecording finding regarding non compliance of the saidprovision for the first time in Writ Petition.23.The next question which arises for consideration is as towhether the petitioner/Management can be permitted to holdinquiry afresh against the respondent/Head Master, since, thetermination is being set aside on the ground that inquiry is notheld in accordance with law. 24.The contention of Mr. Salunke is that the course thatwas adopted in the first instance by this Court in case oftermination of the services of respondent/Head Master at thefirst instance needs to be adopted once again. Mr. Salunkecontends that an employee cannot claim any vested right inprocedure and consequently, he cannot claim immunity fromdisciplinary proceedings only because the inquiry is held to bedefective on technical grounds. He places reliance onjudgments of this Court in the first round of litigation betweenthe parties. As against this, the learned Advocate for therespondent/Head Master has placed reliance on judgments in 18wp-10245-2024the matter of Head Master, Vivek and Madhav Narhare(supra) to contend that opportunity to hold fresh inquiry onthe ground that the inquiry was vitiated cannot be granted onthe second occasion. It will be appropriate to quote followingportions from the judgment of Head Master, Vivek:29. However, the submissions made by the learnedAdvocates for the petitioners do not appear to berestricted to conducting a fresh enquiry after the firstenquiry has been set aside for the first time. Theirsubmission is that it is immaterial as to how many times,an enquiry is set aside. The moment it is set aside, theemployer would get the legal right to conduct a denovoenquiry. Mr. Godbole submits that principles of naturaljustice require that the employer should be given a rightto conduct a fresh enquiry whenever the enquiry is setaside. I find the said submission to be fallacious for thereason that the intention of law would not only standfrustrated, but if his submissions are accepted, it wouldresult in perpetuating injustice.32. Be that as it may, in catena of judgments, the Honble Supreme Court has held that once the enquiry wasset aside for being vitiated, in industrial jurisprudence,the whole enquiry stands watered down and a denovoenquiry needs to be conducted before the Labour Courtor the Tribunal, as the case may be. In service lawrelating to the MEPS Act, 1977 r/w the Rules of 1981, ifthe enquiry is vitiated at a particular stage in theemployment, a fresh enquiry needs to be commencedfrom the stage at which it was vitiated. In the event, theenquiry is vitiated from the stage of issuance ofstatement of allegations or constitution of the EnquiryCommittee or the issuance of the charge sheet, a freshenquiry could be ordered.33. The principles of natural justice are not like a rubberband or an unruly horse. These principles are not to bestretched till they snap or result in causing injustice than 19wp-10245-2024intended justice. After the first opportunity forconducting a denovo or fresh enquiry is granted to anemployer, it would not mean that a fresh enquiry needsto be permitted on every occasion when the enquiry isvitiated. This would lead to an unending process andwhile the Managements would reap the benefits ofconducting denovo enquiry on umpteen occasions, theemployee would have to suffer the rigours of litigation,accompanied by unemployment, poverty and ignominy.25.The said judgment is followed in the matter of MadhavRajendra Narhare. Both these cases arise out of MEPS Act.The judgments clearly hold that opportunity of conductingfresh inquiry, in case where an inquiry is vitiated for some orthe other reason can be granted only once. It is held that thisprocess of opportunity to cure the defect cannot continue asan unending process. The judgment in the matter of HeadMaster, Vivek also holds that granting repeated opportunitieswill result in the management reaping benefits of its ownwrongs at the cost of the employee, who will have to sufferthe rigour of litigation accompanied by unemployment,poverty and ignominy. In view of the clear exposition of law,in the aforesaid two judgments, fresh opportunity to holdinquiry cannot be given to the petitioner/management onsecond occasion. The learned Tribunal has rightly granted therelief of reinstatement in service on holding that the inquiry is
Decision
22wp-10245-2024make any statement in the memorandum of appeal and alsodid not file separate affidavit stating that he was not in gainfulemployment elsewhere after termination of his services andduring pendency of the appeal. He has made oral statementduring the course of final hearing. It is not clear as to whetherthis oral statement made in the presence of any representativeof petitioner/management or its Advocate. It is undisputedthat the said statement is not made during the course of anyevidence. In such circumstances, the oral statement, referenceto which is made in the order passed by the learned SchoolTribunal will not serve the purpose. Such statement cannot bevalid substitute for pleading or affidavit.30.The learned Tribunal has erred in awarding full backwages to the respondent/Head Master relying upon the saidoral statement. The impugned order is liable to be quashed tothe extent of it awards back wages.31.It will be pertinent to mention that although, initiallysubsistence allowance was not paid to the respondent/HeadMaster, the arrears thereof have been cleared and therespondent/Head Master has received subsistence allowance 23wp-10245-2024to the extent of 50 percent of his salary for the initial period offour months from the date of his suspension and thereafter,75 percent of his salary towards suspension allowance. Thesuspension allowance is paid till the date of termination ofservices. Learned Advocate for the respondent/Head Masterhas confirmed the same during the course of hearing of thepetition in the presence of the respondent, who was personallypresent in the Court. It is well settled that the amount ofsuspension allowance is required to be deducted whilecomputing back wages. Thus, a substantial amount isreceived by the employee while he was out of employment.32.In the result, Writ Petition is partly allowed. The orderpassed by the learned Presiding Officer, School Tribunal,Solapur in Appeal No.43 of 2022 is maintained except for thedirection for payment of back wages. The respondent/ HeadMaster is entitled for reinstatement in service with continuityand all consequential benefits except back wages.33.Civil Applications, if any, stand disposed of.( ROHIT W. JOSHI, J. )Rushikesh/2025