1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3248 OF 2009 1. Bhartiya Shikshan Sanstha, Ambajogai, Dist. Beed Through its President. 2. Bhartiya Shikshan Sanstha, Ambajogai, Dist.Beed Through its Secretary, 3. Kholeshwar Madhyamik Vidyalaya, Ambajogai, Dist.Beed Through its Headmaster. ..Petitioners -VERSUS- 1. Amrut Bapurao Kusale Age : 56 years, Occ : Service, R/o LIC colony, Nagzari parisar, Ambajogai. 2. Education Officer (Secondary), Zilla Parishad, Ambajogai. ..Respondents ......... Mr.Pradeep Deshmukh holding for Mr.Vivek Bhavthankar, Advocate for petitioners. Mr.V.D. Salunke, Advocate for respondent no.1. Mr.D.R. Kale, A.G.P. for respondent no.2. ........ (CORAM : R.K. DESHPANDE,J.) DATE : 15th June, 2010. ORAL JUDGMENT : 1. This Writ Petition challenges the judgment and order dated 09.04.2009 passed by the Presiding Officer, School Tribunal, 2 Aurangabad, allowing the appeal No.36/2006 filed by the respondent no.1-employee. By the said order, the order of reversion dated 31.05.2006 issued by the Management, reverting the respondent no.1 from the post of Headmaster to the post of Assistant teacher has been quashed and set aside. The Tribunal has further directed reinstatement of the respondent no.1- employee in service as a Headmaster in the school, with all consequential benefits from the date of his reversion till the date of his reinstatement. This order is the subject matter of challenge in the instant writ petition by the Management. 2. The respondent no.1-employee filed a caveat and appeared before this Court, when the matter was listed. Accordingly, by consent of the parties, the matter was adjourned from time to time. Record and Proceedings were also called. The statement was made on behalf of the respondent no.1-employee that till the hearing of this writ petition, no further steps shall be taken for implementation of the judgment and order passed by the School Tribunal. 3. Shri.V.D. Salunke, learned counsel accepts notice for respondent no.1 whereas, the learned A.G.P. appears for respondent no.2. The learned counsels for the parties agree that 3 the matter can be disposed of finally, at the stage of admission. Hence Rule, made returnable forthwith. With the consent of the parties, the matter is heard finally at the stage of admission. 4. The respondent no.1-employee was reverted from the post of Headmaster to the post of Assistant Teacher, by an order dated 31.05.2006, after holding an enquiry and proving the charges which were framed. One of the grounds for setting aside the order of reversion by the Tribunal is that the provisions of Rules regarding giving of opportunity were not followed and hence, the order of reinstatement in service with continuity and back wages has been passed. It is the contention of the petitioners that in such a situation, the Tribunal ought to have permitted the Management to hold denovo enquiry and an order of reinstatement and back wages should not have been passed. Alternatively, it is submitted that the Tribunal ought to have permitted the petitioners to lead evidence before the Tribunal to establish the charges levelled against the respondent no.1, instead of directing reinstatement and back wages. Shri.Deshmukh, learned counsel for petitioners relies upon the decision of this Court reported in 2004(4) Mh.L.J. 173 (Adarsh Vidya Mandir Trust & another V/s Awadesh Narayan Komal Singh and others), wherein it has been held that the Tribunal in appeal holding that the enquiry conducted by the 4 Management was vitiated on account of breach of principles of natural justice, should remand the matter back for fresh enquiry, from the stage at which the enquiry is found to be vitiated or to dispose of the matter by recording the evidence itself. 5. Shri.V.D. Salunke, the learned counsel for the respondent no.1 submits that the Tribunal has found that the enquiry was vitiated on account of breach of principles of natural justice, and hence the order of reinstatement and back wages was rightly passed. He further submits that the finding is also recorded that the charges are not proved. Shri.Salunke further submits that no prayer was made by the petitioner before the Tribunal for permission to lead the evidence and hence the question of Tribunal granting such permission does not arise. He therefore supports the judgment and order passed by the School Tribunal. 6. It is now well settled that if the Tribunal finds that the enquiry is vitiated on account of breach of principles of natural justice, it has got two options (i) to direct the Management to hold denovo enquiry into the charges afresh or (ii) to permit the parties to lead the evidence before Tribunal and to record findings on merit of the charges. This is the law laid down by the judgment cited supra. It is not in dispute in the instant case that one of the findings 5 recorded by the Tribunal is that the enquiry is vitiated on account of breach of principles of natural justice, which are incorporated under Rule 36 for holding enquiry. Neither the learned counsel for the petitioner nor the learned counsel for respondent no.1 is agreeable to option (ii) above. In view of the option (i), the order setting aside reversion and granting reinstatement cannot be faulted with and the same is maintained. It is not in dispute that the respondent no. 1-employee was placed under suspension by an order dated 04.01.2006 till the ultimate, order of reversion was passed on 31.05.2006. In view of this, although the order of reinstatement is maintained, the status of the respondent employee would remain that of suspended employee, as per order of suspension dated 04.01.2006. However, from the date of the order of reinstatement i.e. 09.04.2009, the natural consequence would be that the respondent no.1-employee would be entitle for subsistence allowance, as if he was placed under suspension w.e.f. 04.01.2006. 7. So far as the order of payment of back wages is concerned, the same cannot be sustained for the reason that enquiry is pending, there is a dispute as to whether respondent no. 1 employee was willing to work on reverted post or was in gainful employment and the question of payment of back wages would 6 also depend upon the conclusion of enquiry and the ultimate action of management, to be taken thereafter. The management would pass an appropriate order and if the respondent employee is aggrieved by it, then it will be open for him to challenge the same in the forum available. The questions whether, the respondent employee was ready and willing to join reverted post w.e.f. 31.05.2006 or was not entitled to salary for the period from 31.05.2006 till the decision of Tribunal on 09.04.2006, on the principle of no work no pay, or was in alternate gainful employment, would also be decided in such proceedings and it would be open for respondent employee to justify his claim. It is made clear that this Court has not expressed any opinion as to merits of charges or entitlement of respondent no.1 to entire back wages. 8. In the result, the instant writ petition partly succeeds and following order is passed. (i) The judgment and order dated 09.04.2009 passed by the Tribunal in Appeal no.36/2006 is set aside only to the extent of award of back wages. (ii) The petitioner management is permitted to conduct denovo 7 enquiry from the stage at which, it is found to be vitiated by the Tribunal. Such enquiry to be completed within a period of four month from 26th July, 2010. (iii) The respondent no.1 employee would remain under suspension w.e.f. 04.01.2006 and shall be paid with subsistence allowance in accordance with rules and after taking into consideration the 6th pay commission pay scales, regularly on or before 10th of every succeeding month w.e.f. 09.04.2009. (iv) The respondent employee shall not be entitled to any payment for the period from 04.01.2006 to 09.04.2009. However, the arrears of subsistence allowance from 09.04.2009 to 31.05.2010 shall be paid within two months from today; 50% of which will be paid within one month and balance 50% in a month thereafter. (v) The respondent employee shall extend every cooperation to the management to complete enquiry within four months. (vi) The question of payment of back wages from 31.05.2006 to 09.04.2009, is kept open and parties are at liberty to contest the same, if any such proceedings are required to be taken up in 8 future. 9. Rule is made absolute in the aforesaid terms with no order as to costs. (R.K. DESHPANDE) JUDGE gas/wp3248.09