( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 718 OF 2002 Nagappa s/o Iranappa Karpe, R/o Yeshwant Nagar, Murum, Tq. Omerga, Dist. Osmanabad. PETITIONER VERSUS 1. Dnyandan Shikshan Prasarak Mandal, Murum, Tq. Omerga, Dist. Osmanabad, through its President. 2. Secretary, Dnyandan Shikshan Prasarak Mandal, Murum, Tq. Omerga, Dist. Osmanabad. 3. Education Officer (Secondary), Zilla Parishad, Osmanabad. 4. Presiding Officer, School Tribunal, Aurangabad. RESPONDENTS ..... Mr. R.J. Godbole, advocate for the petitioner. Mr. B.R. Sontakke Patil, advocate for respondent No. 1. ..... WITH WRIT PETITION NO. 381 OF 2003 Dnyandan Shikshan Prasarak Mandal, Murum, Tq. Omerga, Dist. Osmanabad, through its President. PETITIONER VERSUS 1. Nagappa s/o Iranappa Karpe, R/o Yeshwant Nagar, Murum, Tq. Omerga, Dist. Osmanabad. 2. The Secretary, ( 2 ) Dnyandan Shikshan Prasarak Mandal, Murum, Tq. Omerga, Dist. Osmanabad. 3. The Education Officer (Secondary), Zilla Parishad, Osmanabad. RESPONDENTS ..... Mr. B.R. Sontakke Patil, advocate for the petitioner. Mr. R.J. Godbole, advocate for the respondent No. 1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th July, 2009] ORAL JUDGEMENT : 1. Both these petitions are being decided together in as much as they arise out of same judgement and order rendered by the learned Presiding Officer, School Tribunal, Aurangabad in appeal No. 139/1999. 2. For sake of convenience, the parties will be referred hereinafter as Nagappa (Head Master) and the Educational Society i.e. Dnyandan Shikshan Prasarak Mandal. 3. Nagappa was admittedly working as Head Master of the school run by the Educational Society. He was so ( 3 ) appointed on 01-06-1977. It appears that one Mr. R.S. Khune was appointed w.e.f. 05-11-1984 to work as Drawing Teacher. The Education Officer granted approval only for one year to the said appointment. There was communication sent by the President of the Educational Society to the Education Officer by letter dated 26-08-1986 to the effect that the post occupied by Mr. R.S. Khune was not a reserved post as such. The President urged the Education Officer to accord approval to the continuation of Mr. R.S. Khune. The Education Officer entertained certain doubts and directed that the post shall be filled up by making suitable appointment of a person from S.T./N.T. Category. The pay-bill of Mr. R.S. Khune was not drawn for a couple of months. The Educational Society noticed that Nagappa subsequently had withdrawn Rs. 4800/- unauthorizedly and committed misappropriation thereof during the period of his suspension. An inquiry was held against him. There is no dispute about the fact that disciplinary inquiry was also held against Mr. R.S. Khune. It is not necessary to elaborately deal with the aspects pertaining to the disciplinary inquiry. Suffice it to say, Nagappa was ( 4 ) chargesheeted for commission of misconduct leading to imposition of major penalty and also separately minor penalty was awarded to him as provided under the Rules. The Inquiry Committee held that the charges of misappropriation of Rs. 4800/- and negligence in duty were established. Therefore, Nagappa (H.M.) was reverted from post of Head Master to the post of Assistant Teacher. He challenged the reversion by filing appeal No. 139/1999. He also preferred administrative appeal against the minor penalty awarded to him on account of other charges which entailed order of recovery of salary paid to Mr. R.S. Khune from him. 4. The learned Presiding Officer of the School Tribunal held that the reversion of Nagappa was improper and illegal. The order dated 07-06-1999 whereby he was reduced in rank was quashed. The School Tribunal directed reinstatement of Nagappa to his original post i.e. Head Master. The School Tribunal, however, directed that he will not be entitled to recovery of difference of the pay during the relevant period. Feeling aggrieved, Nagappa has preferred this petition ( 5 ) to the extent of refusal to grant the relief pertaining to difference of pay for the relevant period whereas the Educational Society has preferred writ petition No. 381/2003 being aggrieved due to quashing of the order of reduction in rank of Nagappa from post of Head Master to the post of Assistant Teacher. Nagappa further challenges the direction of the learned Presiding Officer that the order pertaining to recovery of the unauthorized payment to the teacher – Mr. R.S. Khune would not be distributed and he cannot be deemed as exonerated from any recovery of Rs. 4800/- as the said charge was not taken into account by the School Tribunal. 5. Heard learned counsel for the parties. 6. It is stated at the Bar that administrative appeal is pending before the competent authority in so far as the minor penalty imposed on Nagappa is concerned. Therefore, the directions in paragraph No. 4 of the final order of the School Tribunal cannot be treated as any decision on merits. The School Tribunal ( 6 ) did not disturb the order pertaining to recovery of unauthorized payment because it was outside the pale of jurisdiction in view of scope of section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). The said issue is to be decided by the competent authority dealing with the administrative appeal preferred by Nagappa. That issue is kept open for such administrative decision and has nothing to do with the merits of the present petitions. 7. Mr. Godbole would submit that Mr. R.S. Khune was lateron reinstated in service and no action has been taken against him. It is pointed out by Mr. Sontakke that Mr. R.S. Khune is reinstated in service as result of the order rendered by the School Tribunal in an appeal preferred by the latter. Whatever may be the fall-out of such further development, it is quite clear that the charge against Nagappa was regarding facilitation of unauthorized pay to said Mr. R.S. Khune. Needless to say, Nagappa did not receive that amount. His contention before the Inquiry Committee and the ( 7 ) School Tribunal was that he acted as per the directions of the President. It cannot be overlooked that because of Nagappa, the President himself had written the letter dated 26-08-1986 to the Education Officer seeking continuation of Mr. R.S. Khune. Indisputably, Nagappa was working on the lower post and was subsequently reinstated as Head Master. He retired from the post of Head Master. The question is as to whether the penalty of reduction in rank can be justified. The learned Judge of the School Tribunal held that the inquiry was improperly conducted in breach of Rule 37 (2) (d) (ii) and 37 (2) (e) of the MEPS Rules, 1981. It appears that certain new charges were added which were not shown in the show-cause notice served on Nagappa (H.M.). The inquiry could not be, therefore, conducted in respect of the additional charges which did not form part of the charges levelled under the show-cause notice. Considering the deficiencies found in the process of disciplinary inquiry , the findings of the School Tribunal cannot be regarded as perverse or arbitrary. 8. The learned Judge of the School Tribunal held ( 8 ) that copy of the Inquiry report was not provided to Nagappa (H.M) and as such, the manor penalty imposed on him was improper and liable to be interfered with. Considering the findings of the learned Judge of the School Tribunal, I find it difficult to hold that the penalty of reduction in rank could be justified. It follows, therefore, that the petition preferred by the Educational Society is without substance. 9. So far as the petition of Nagappa is concerned, the claim regarding difference of pay during the relevant period cannot be considered in as much as he did not work as Head Master during the relevant period. The principle “no work no pay” would be applicable to the fact situation of the present case. The pay of Head Master is more as compared to that of Assistant Teacher because of onerous duty assigned to the Head Master to supervise various activities of the school and to organize the training schedule, etc. 10. Once it is noticed that Nagappa was not required to discharge such onerous duties as Head Master ( 9 ) during the period of disciplinary inquiry and until the order of his reduction in rank was set aside, he cannot claim difference of pay for such period. In this view of the matter, the petition filed by Nagappa is also without substance. 11. In the result, both the writ petitions are dismissed. No costs. 12. The observations of the School Tribunal be not considered while deciding the question about propriety and legality of minor penalty on Nagappa and the said observations also be not considered while releasing his pension or provisional pension and difference of pension from the date of reinstatement to the post of Head Master, as the case may be. 13. In view of dismissal of writ petitions, civil application No. 7376/2006 filed in writ petition No. 718/2002 does not survive and hence, stands disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/WP718-02-381-03 ( 10 )