1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.7886 OF 2005 Smt. Vijaya Dinesh Bajpai. ...Petitioner. Vs. The Municipal Commissioner & Ors. ...Respondents. .... Mr. J. G. Reddy for the Petitioner. Mr. R. D. Suryawanshi for Respondent Nos.1 to 3. Mr. V. P. Malvankar, AGP for Respondent No.4. ..... CORAM : F.I. REBELLO, J. AND DR.D.Y.CHANDRACHUD, J. January 23, 2006. P.C. (Per Dr. D.Y. Chandrachud, J.): Rule, by consent returnable forthwith. Counsel appearing on behalf of the Respondents waive service. By consent of Counsel and at their request taken up for hearing. 2. By an order dated 9th October 1987, the Petitioner was appointed as an Assistant Teacher in the Hindi Secondary School managed by the Kalyan-Dombivli Municipal Corporation at Dombivli (East). The Petitioner is duly qualified being a B.A.; B.Ed. and she was made permanent by an order dated 2nd May 1990. It is the case of the Petitioner that in 1993, the Headmaster of the School started harassing the Petitioner and on 17th September 2 1993, the Petitioner was assaulted in the presence of other members of the staff in the office of the Headmaster, which led to the filing of a police complaint. As a result, according to the Petitioner, the Headmaster started levelling false complaints against the Petitioner which eventually culminated in the issuance of a chargesheet dated 25th December 1995 to the Petitioner. It has been stated that the Headmaster has since been dismissed from service on grounds of moral turpitude. In pursuance of the chargesheet, an Enquiry Officer was appointed with a direction to complete the enquiry within a period of two months. The enquiry was concluded nine years later on 18th November 2004, during which Enquiry Officers were alleged to have been changed on six occasions and the statement of the prime witness on behalf of the Department, one Smt.Bina Singh was recorded on two separate occasions on 26th August 1996 and 30th August 2004. In the meantime, the Petitioner was denied promotion to the post of Headmistress though she was the seniormost teacher on the ground that the enquiry was pending and Smt.Bina Singh came to be appointed as a Headmistress. The Enquiry Officer submitted his report on 21st October 2004 and came to the conclusion that seven of the eleven Articles of charge did not stand proved but 3 charges 8 to 11 of the chargesheet had been duly established. In pursuance of a communication dated 25th October 2004, calling upon her to show cause the Petitioner submitted a representation dated 28th October 2004. On 29th December 2004, a final notice to show cause was issued to the Petitioner to explain why two of her increments should not be stopped permanently on the basis of the report. The Petitioner submitted a reply on 15th January 2005 upon which the First Respondent passed an order dated 17th February 2005 stopping two increments of the Petitioner permanently on the finding of misconduct. The findings of misconduct and the punishment that is imposed upon the Petitioner have been challenged in these proceedings under Article 226 of the Constitution. 3. On behalf of the Petitioner it has been submitted that the enquiry was initiated against the Petitioner under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. However, the school in question is not a private school within the meaning of Section 2(20) of the Act and the Act itself does not apply to a school conducted by a local authority such as a Municipal Corporation. Hence, it was submitted that the enquiry 4 proceedings were initiated under provisions of law which have no application. On merits, it is submitted that the entire finding of misconduct in the report of the Enquiry Officer is founded on the evidence of Smt.Bina Singh who deposed at the enquiry. Counsel submitted that ex-facie even a bare perusal of the evidence of the witness would reveal that quite apart from supporting the articles of charge, the witness had been unable to state anything about the charge of misconduct that had been levelled against the Petitioner. In these circumstances, the findings of the enquiry were assailed on the ground of there being no evidence in support of the charge of misconduct and it was submitted that interference under Article 226 of the Constitution is warranted in view of the fact that the Enquiry Officer has not considered vital pieces of evidence on record. 4. While considering these submissions, it must be noted at the outset that Section 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 provides that the Act applies to a 'private school'. The expression 'private School' is defined in Section 2(20) as follows: “2(20) “Private school” means a recognised school 5 established or administered by a Management other than the Government or a local authority.” The position of law is that the Act has no application to a school conducted by a Municipal Corporation. This has also been so held by a Division Bench of this Court consisting of Mr.Justice B.N. Srikrishna (as the Learned Judge then was) and Mr.Justice S. Radhakrishnan, in Sushila Dixit v. Laxmibai Valanju Prathamik Shala, 1998 II CLR 265. That, however, would not be dispositive of the first submission since it cannot be disputed that even if the provisions of the Act have no application, it was open to the First Respondent as employer of the Petitioner to hold a disciplinary enquiry into a charge of misconduct. A reference to a wrong provision of law in the chargesheet, namely, to the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, will not invalidate the enquiry, as the employer has sufficient powers to conduct the enquiry. 5. In so far as the merits of the challenge are concerned, it would be necessary to note the nature of the allegations of misconduct. The Enquiry Officer has found that from of the eleven 6 articles of charge, charges 8 to 11, have been established in the enquiry. A broad translation of these charges is thus: “(viii) Absence during the period of examinations which resulted in disruption of the examination schedule; (ix) Despite being penalised to the extent of Rs.80/- on 29th March 1994, there was no improvement in the behaviour of the chargesheeted employee; (x) Failure to comply with the directions of the Headmaster; and (xi) putting up posters and newspaper cuttings containing defamatory material against the Headmaster and the use of abusive language leading to a disruption of work”. 6. The Enquiry Officer has in the course of his report dated 21st October 2004 come to the conclusion that the finding of misconduct stood established on the basis of the evidence of Smt.Bina Singh who deposed on behalf of the management. The Enquiry Officer notes that the aforesaid witness deposed that the Petitioner had distributed copies of a newspaper containing allegations relating to the improper relationship between the Headmaster and Smt.Bina Singh in his office and the precincts of the School. The Enquiry Officer then noted that the Petitioner had invited persons not having any official business with the school into 7 the premises of the school with a view to disturb the functioning of the school. On the basis of the aforesaid finding, which is contained in the second paragraph of the report, the Enquiry Officer has entered a finding to the effect that charges 8 to 11 have been proved in the course of the disciplinary proceedings. The charges that were framed in the disciplinary proceedings related to (i) The absence of the Petitioner during the period of examinations thereby causing difficulties in the work; (ii) A failure to improve her conduct despite the imposition of a penalty of Rs.80/- on 29th March 1994; (iii) A failure to observe the directions of the Headmaster; and (iv) Pasting posters and newspaper cuttings defamatory to the Headmaster in the premises of the School and the use of abusive language. These four articles correspond to charges (viii), (ix), (x) and (xi) of the chargesheet. The Enquiry Officer held that all these charges are established and in holding so, adverted to the evidence of Smt.Bina Singh. Now, ex-facie, the findings of the Enquiry Officer do not contain any elaboration of the evidence on the first three of the aforesaid charges. The entire discussion in the enquiry report relates to the last article of charge namely, putting up of defamatory posters and newspaper cuttings on the premises of the school. Hence, there can be no manner of 8 doubt that the report of the Enquiry Officer suffers from a complete non-application of mind and charges 8, 9 and 10 were held to have been established without even a discussion thereon and absent a consideration of the question as to whether any evidence was available in respect of these charges. We have perused, with the assistance of Counsel, the evidence of Smt.Bina Singh which has been relied upon by the Enquiry Officer. The witness categorically stated that she was not able to state anything about the conduct of the Petitioner in regard to the holding of examinations, the observance of the directions of the Headmaster or on the allegation that the Petitioner had used abusive language. On this state of evidence, it was impossible for any reasonable person to come to the conclusion that the first three of the aforementioned charges were established since there was absolutely no evidence in support thereof. In so far as the last article of charge was concerned, Smt. Bina Singh stated that she was unaware as to whether it was the Petitioner who had written the alleged defamatory material and she specifically stated that she was not able to state as to who had written the article in the newspaper complaining of her conduct. There is a stray reference in the evidence of the witness to the fact that the Petitioner had 9 distributed copies of the newspaper article in the office and outside the school. In the course of cross-examination, the witness, however, categorically admitted that she was unable to state the name of any person to whom the Petitioner had allegedly distributed the newspaper article. In response to the notice to show cause that was issued to the Petitioner after the submission of the Enquiry Report, the Petitioner specifically adverted to the discrepancies in the evidence of Smt.Bina Singh including the total absence of any evidence whatsoever in regard to the first three Articles of charge. The Municipal Commissioner, while holding that the misconduct had been established and in imposing upon the Petitioner a punishment of a permanent stoppage of two increments, did not deal with any of the objections of the Petitioner and merely recorded his opinion that the Petitioner was a teacher and, that with the kind of conduct that was alleged against her, how could she be in a position to impart correct values to her students. The least that was expected of the disciplinary authority was that there should be an application of mind to the reply submitted by the Petitioner to the notice to show cause upon submission of the Enquiry Report. This was not done. 10 7. This Court is, therefore, constrained to observe that the penalty which has been imposed upon the Petitioner stands completely vitiated. The finding of misconduct is based on no evidence. The enquiry commenced in 1995 and took over nine years to complete. The Enquiry Officer failed to notice vital admissions contained in the evidence of Smt.Bina Singh. The Enquiry Officer held Charges 8, 9 and 10 were proved despite the specific admission of the witness that she had absolutely nothing to say in regard to the allegations relating to the absence of the Petitioner during the examination period, the alleged failure to comply with the lawful directions of the Headmaster. Similarly, she stated that she had never heard the Petitioner take recourse to abusive language. The charge that the Petitioner has pasted posters and newspaper cuttings containing defamatory material in regard to the Headmaster at the office and in the premises of the school has not been established by any evidence on record. The interference of the Court is thus warranted having regard to the scope of the jurisdiction under Article 226 in disciplinary matters. 8. In these circumstances, the Petitioner is entitled to succeed. The Court has been informed that in the meantime, the 11 Petitioner came to be superseded in making the appointment of a Headmistress in view of the pendency of the disciplinary enquiry. We hold and clarify that the said decision does not form the subject matter of challenge in these proceedings and the Petitioner will be at liberty to espouse the remedies available in law. The Petition stands allowed in these terms. There shall no order as to costs. ( F.I. Rebello, J.) (Dr. D.Y. Chandrachud, J.)