1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2914 OF 2004 Lautan Ram Punwasi. ..Petitioner. V/s. Acharya Narendra Dev Vidya Mandir & Ors...Respondents. Mr.Shaikh Nasir Masih for Petitioner. Mr.Shekhar Ingawale, AGP for state. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 19, 2008. DATE : MARCH 19, 2008. DATE : MARCH 19, 2008. P.C. : P.C. : P.C. : 1. None appears for the Respondent Nos.1 and 2. This Writ Petition takes exception to the Judgment and Order passed by the Presiding Officer, School Tribunal, Mumbai dated 22nd April, 2004 in Appeal No.GEN/14/94/BOM/08/1994. By the said Appeal the Petitioner had challenged the Order of termination dated 31st December, 1993 on diverse grounds. The Tribunal however, negatived the stand taken on behalf of the Petitioner and preferred to dismiss the Appeal. That decision is subject matter of the challenge in the present Petition. 2. Briefly stated the Petitioner was appointed as Assistant Teacher in trained under graduate scheme 2 on 12th October, 1977. The Petitioner was placed under suspension by order dated 22nd April, 1992 as he was arrested in connection with the criminal case by the Anti Corruption Bureau. As the suspension was continued for quite some time and no response was given to the representation made on behalf of the Petitioner, the Petitioner was advised to file Writ Petition before this Court being Writ Petition No.2167 of 1992, challenging the suspension order. The Division Bench of this Court by Order dated 9th November, 1992 directed the Management to complete the proposed disciplinary action expeditiously and also to pay the subsistence allowance to the Petitioner. Consequently, show cause notice was issued to the Petitioner containing several allegations in connection with the episode that occurred on 6th April, 1992. The Petitioner submitted reply to the said show cause notice and denied the allegations. The disciplinary action was proceeded against the Petitioner by constituting Inquiry Committee. The Petitioner had questioned the constitution of the Committee. After Inquiry Committee was constituted charge sheet dated 3rd April, 1993 was issued to the Petitioner and eventually, inquiry was proceeded further whereafter the Inquiry Committee recommended termination of the 3 Petitioner. Acting upon the said recommendation, the Managing Committee unanimously in its meeting held on 10th December, 1993 accepted the recommendation of the Inquiry Committee to terminate the Petitioner. Accordingly, the Petitioner was informed in that behalf, whereafter the Petitioner preferred statutory Appeal No.8 of 1994 before the School Tribunal. As aforesaid, in the Appeal, several grounds have been raised, which have been addressed by the Tribunal and answered against the Petitioner. The Tribunal has eventually dismissed the Appeal on the finding that no fault can be found with the procedure adopted in the disciplinary inquiry against the Petitioner. As aforesaid this Petition questions the correctness of the said view of the Tribunal. 3. Counsel for the Petitioner realising the limited scope of interference in exercise of Writ jurisdiction essentially addressed four contentions for consideration. The first argument is that the disciplinary inquiry was proceeded against the Petitioner without giving any intimation in that behalf to the Petitioner. In substance, the grievance is that the continuation of disciplinary inquiry without giving prior intimation to the Petitioner has resulted in non-compliance of natural 4 justice. It is next contended that there has been violation of Rule 37(4) of the Rules, which would vitiate the conclusion reached by the Inquiry Committee as well as the decision of the Management to terminate the Petitioner. It is then contended that the Tribunal has proceeded on erroneous factual basis. In that, in paragraph-49 of the impugned Judgment, the Tribunal records that the Appeal preferred by the Petitioner before this Court against the Order of conviction and sentence passed by the Criminal Court has been dismissed and that the Petitioner has not carried the matter in Appeal. According to the Petitioner, the Appeal preferred by the Petitioner was pending at the relevant time and not decided against the Petitioner. It is also argued that the inquiry report as well as the Tribunal has proceeded on the basis that the Petitioner did not appear in the inquiry, whereas the noting made in the record would indicate that the Petitioner was present. In view of this inconsistency, adverse inference ought to be drawn about the fairness of the procedure followed by the Inquiry Committee. It was argued that the Petitioner has been made victim of circumstances and has been falsely implicated. 5 4. Having considered the argument canvassed on behalf of the Petitioner and keeping in mind the materials on record, I would proceed to answer the abovesaid broad contentions raised on behalf of the Petitioner. The first argument of the Petitioner that the Petitioner was not informed about the date of hearing before the Inquiry Committee, this grievance is unsubstantiated. On the other hand, the materials on record would clearly indicate that all necessary formalities were completed by the Inquiry Committee to ensure that fair opportunity is given to the Petitioner. The record indicates that after the Division Bench of this Court directed expeditious disposal of the inquiry, the Inquiry Committee was constituted. Show Cause notice was given to the Petitioner vide letter dated 23rd January, 1993, who in turn submitted his reply on 1st February, 1993. The reply was received by the Management on 8th February, 1993. Whereafter, the Chief Executive Officer submitted the same before the Management. As the Management was not satisfied with the reply, decided to hold inquiry into misconduct of the Petitioner. Accordingly, it constituted Inquiry Committee under Rule 38. The record also indicates that the Chief Executive Officer by letter dated 12th February, 1993 informed the Petitioner about the 6 members of the Inquiry Committee nominated by the Management and requested the Petitioner to nominate one member on the Inquiry Committee. The Petitioner however, by letter dated 1st March, 1993 insisted to disclose the name of the member nominated by the Management on the Inquiry Committee. According to the Management, as the Management was unable to obtain consent of the State/National Awardee Teacher before 12th February, 1993, name of the said nominee could not be communicated to the Petitioner. The Chief Executive Officer however, by letter dated 16th March, 1993 informed the Petitioner about the State/National Awardee Teacher, who was nominated by the Management. That letter was received by the by the Petitioner on 22nd March, 1993. The Petitioner, however, did not nominate any member on the Inquiry Committee, though had opportunity to do so. In terms of the provisions contained in the Rules, the Management after waiting for some time eventually submitted charge sheet dated 3rd April, 1993, which was forwarded to the Petitioner as well as the Chief Executive Officer. The Petitioner did not submit any reply to the said charge sheet. Eventually, the first meeting of the Inquiry Committee was held on 19th April, 1993, in which it was decided to fix the date of meeting for recording of evidence on 2nd May, 7 1993. It is also noticed from the record that the Inquiry Committee was apprised of the objection taken by the Petitioner in his letter dated 29th April, 1993 about the timing of holding the meeting of the Inquiry Committee after school hours and during vacation. Keeping in mind the said objection, the Inquiry Committee postponed the hearing scheduled on 2nd May, 1993 and instead fixed in June, 1993, after the summer vacation. As the Inquiry Committee could not meet in June, 1993, the meeting was held on 18th July, 1993, when it was decided to meet on 24th July, 1993 for recording of evidence of witnesses. Notice in respect of the said meeting was sent to the Petitioner. Inspite of the said notice, the Petitioner did not bother to remain present at the hearing before the Inquiry Committee on 24th July, 1993. The Inquiry Committee had no option, but to proceed with the hearing. The Tribunal has considered the grievance about the breach of principle of natural justice in its Judgment, in particular, in paragraphs-42 and 46 thereof. The Tribunal has found as of fact that notices were sent to the Petitioner by different modes on the different dates. It is observed that notices were sent to the Petitioner by different modes, such as Registered A/D, UPC and Speed Post. The Tribunal has noted that 8 the Petitioner has accepted only those communications, to which the Petitioner found it appropriate to reply. Be that as it may, the fact remains that when the inquiry commenced, the Petitioner was fully apprised about the date of inquiry. It is the Petitioner, who had taken objection about timing of the meeting, to be scheduled on 2nd May, 1993. Pursuant to which the Inquiry Committee deferred the date of meeting, to be held after summer vacation. 5. From the materials on record, therefore, it is more than clear that the Petitioner was given sufficient intimation and opportunity to attend the hearing. But the Petitioner neither chose to nominate member nor remained present or deputed her representative to espouse her cause at the hearing before the Inquiry Committee. There is no reason to doubt the correctness of the record that intimation of the meeting was sent to the Petitioner from time to time. The record indicates that attempt was made to send such intimation by different modes, such as Registered Post A/d, Speed Post and UPC, but also by hand delivery. In my opinion, no fault can be found with the conclusion of the Tribunal that the grievance about no service of notice made on behalf 9 of the Petitioner is calculated and after thought. In my view, no grievance about no intimation received about the date of hearing before the Inquiry Committee is devoid of merits. 6. The next grievance of the Petitioner is one of the non-compliance of Rule 37(4) of the Rules. The said Rule requires that Inquiry Committee shall forward to the employee or the Head, as the case may be, a summary of the proceedings and copies of the statements of witnesses, if any, by registered post acknowledgement due within four days of completion of the steps already taken and allow him a time of seven days to offer his further explanation, if any. Once again, grievance made of non-service of summary of the proceedings will have to be stated to be rejected. In so far as service of summary of proceedings and compliance of rule 37(4) is concerned, record indicates that after completion of recording of evidence on behalf of the Management, as no evidence was offered on behalf of the Petitioner, on 6th December, 1993, the summary of proceedings of the Inquiry Committee, copies of the statements of 19 witnesses as well as relevant minutes of meeting were sent to the Petitioner by speed post as well as by hand delivery. The person namely Anjanikumar Jha and 10 Harishchandra Karawade, through whom attempt was made to serve the Petitioner by hand delivery were working as clerk and peon in the school. The said persons have stated on affidavit that they had met the Petitioner and requested him to accept the above said document, but he refused to accept the same on the ground that his advocate has asked him not to accept anything by hand delivery. The assertions of these persons made on affidavit have remained unchallenged. Besides hand delivery, attempt was also made to serve the Petitioner by other modes of service such as speed post, RPAD UPC, but the packets were returned with remark "unclaimed". The Tribunal has considered this aspect of the matter in paragraph-43 of the impugned Judgment and in my view rightly rejected the plea of the Petitioner about non-service of summary proceedings. 7. It will be also useful to advert to the opinion recorded by the Tribunal in paragraph-46 of the impugned Judgment which also deals with the grievance of the Petitioner about the non-service of documents. Suffice it to observe that the stand taken on behalf of the Petitioner has not been substantiated. Whereas, the evidence on record, which has remained uncontroverted would substantiate 11 the position that attempt to comply with the procedural requirement made by the Management on instructions of the Inquiry Committee were frustrated, which was attributable to the Petitioner and not the fault of the Committee or the Management. Suffice it to observe that even this grievance is devoid of merits. 8. That takes me to the last grievance of the Petitioner that the Tribunal has proceeded on erroneous assumption amongst others that the Appeal preferred by the Petitioner against the Order of conviction and sentence in the Criminal Case was already dismissed and that the Petitioner had not challenged the said decision. The Petitioner relies on the document at page 111, which is the copy of the writ issued under signature of Additional Registrar of this Court dated 25th August, 2003. Indeed, the order of this Court reproduced would indicate that the Appeal is already admitted. However, that Order is of 25th August, 2003. Whereas, the Tribunal has decided the Appeal preferred by the Petitioner on 22nd April, 2004. It is not clear from the record that the Tribunal had some document before it so as to record in paragraph-49 of the impugned Judgment that the Criminal Appeal preferred by the Petitioner 12 has already been dismissed by this Court. Counsel for the Petitioner was called upon to produce material to establish the position that after the Order passed on 25th August, 2003, Appeal was still pending on 22nd April, 2004 when the Tribunal proceeded to decide the Appeal. It is not necessary to dilate further of these aspect as, in my opinion, the fact so recorded in paragraph-49 is not the basis on which Tribunal decided the Appeal against the Petitioner. The observations in paragraph-49 of the impugned Judgement are only passing observations and not the basis for dismissal of the Appeal. The Tribunal has decided the Appeal on its own merits by well considered detail judgment, dealing with the grounds agitated by the Petitioner before it. 9. There is also no substance in the grievance made on behalf of the Petitioner that in view of the noting found in the record about the presence of the Petitioner before the Inquiry Committee is clearly inconsistent with the stand taken by the Management in the Appeal that the Petitioner had never appeared before the Inquiry Committee. It is argued that even the Tribunal proceeded on the same premiss to decide the case against the Petitioner. In my opinion, noting so found in the record does not take the 13 matter any further for the Petitioner. That may be a clerical error. The fact remains that there is sufficient material to accept the stand of the Respondent that Inquiry Committee was constituted by following procedure provided by the extent regulations and that the Inquiry Committee proceeded with the disciplinary action by following necessary procedure. It is a different matter that the Petitioner did not cooperate in the said inquiry and chose to stay away from the inquiry so that, could agitate at the latter point of time that the inquiry was vitiated on account of non-compliance of mandatory requirement, in particular, being violative of principle of natural justice. It is possible that the Petitioner advisedly stayed away from the inquiry as at the relevant time, the criminal action was also proceeding against the Petitioner. 10. Taking any view of the matter, there is no infirmity in the view taken by the Tribunal. Even if the Tribunal has not articulated all the aspects of the matter, the conclusion reached by the Tribunal about fairness of the enquiry and compliance of necessary procedure in the conduct of the inquiry deserves to be upheld. 14 11. At the end, the Counsel for the Petitioner argued that the punishment of termination in the fact situation of the present case is excessive. Even this submission does not commend to me. For, the charges which have been proved against the Petitioner are serious ones. Having regard to those charges, no interference on the quantum of punishment is warranted. 12. Accordingly, this Petition will fail. The same is dismissed with no order as to costs. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)