1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 484 OF 2010 (GULAB PANJABRAO GHATE...VS.. DEPUTY DIRECTOR OF EDUCATION & OTH.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. B.G. Kulkarni, Advocate for Petitioner. Mr. Sunil Manohar with Mr.S.J.Khandalkar, Advocates for Resp. No.4. CORAM : R.M.SAVANT, J. DATE : FEBRUARY 15, 2011. Heard the learned counsel for the parties. This appeal challenges judgment and decree dated 15th September, 2010 passed in Regular Civil Appeal No.523 of 2009 by which the judgment and decree of the trial Court dismissing Regular Civil Suit No.676 of 2003 came to be confirmed. The appellant herein is the original plaintiff and the respondents are the original defendants, amongst whom is the management of the concerned educational institution being one Purushottam Vidyaniketan High School, Borkhedi. The parties would be referred to as per their nomenclature in the trial Court. The plaintiff was initially appointed as Headmaster some time in the year 1999. Thereafter a resolution came to be passed by defendant No.3 management on 21.01.1999 appointing the plaintiff on a permanent basis in terms of the statutory provisions i.e. Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as “MEPS Rules” for the sake of brevity) the qualification for the post of Headmaster is B. Ed. Degree with two years of experience. It appears that at the relevant time since 2 the plaintiff was not having the basic qualifications for being appointed as Headmaster, the management passed a resolution in its meeting dated 18.02.1999 withdrawing the appointment of the plaintiff as Headmaster. However, in view of the administrative exigencies it appears that the plaintiff continued as acting Headmaster. The plaintiff thereafter on 02.11.2000 submitted an application to the Education Officer for grant of approval to his appointment. The said application was accompanied by the resolution of the management purportedly passed on 21.07.1999, the order of appointment purportedly dated 21.07.1999 and undertaking of the management dated 09.10.2000 to the effect that there is no dispute in the management. Pursuant to the said application the Education Officer vide his order dated 20.02.2001 granted approval to the plaintiff as Headmaster. The management on getting wind of the fact that the approval has been granted to the plaintiff initially approached the Deputy Director of Education stating that no permission was granted to the plaintiff for seeking approval from the Deputy Director. The management also made a grievance as regards the authenticity and veracity of the documents submitted by the plaintiff. It appears that the Deputy Director of Education initially advised the management to proceed departmentally against the plaintiff in terms of the statutory provisions applicable, upon which the defendants approached the State Government seeking enquiry into the factum of approval granted by the Deputy Director. The State Government considered the representation of the management and in turn directed the concerned Deputy Director of Education to conduct an enquiry as regards the approval granted to appointment of the plaintiff dated 20.02.2001. This is how the enquiry as regards approval was triggered of. The plaintiff was noticed in the said enquiry by the Deputy Director as a consequence of which the plaintiff filed his reply running 3 into about six pages. The enquiry was fixed before the Deputy Director of Education on 29.06.2002 when the plaintiff as well as the representatives of the management, Deputy Education Officer as well as members of the School Committee were present. The Deputy Director of Education took into consideration the material which was produced by the management and reached the conclusion that the approval granted to the plaintiff on the basis of the documents was not warranted. The Education Officer accordingly vide order dated 09.08.2002 ordered withdrawal of the approval granted to the plaintiff, prior thereto on 07.07.2002 an order was passed by the Education Officer withdrawing the salary of the Headmaster which the plaintiff was getting. The plaintiff, aggrieved by the said order dated 09.08.2002 passed by the Education Officer withdrawing the approval granted to the plaintiff, initially had filed Writ Petition No.3269/2000 in this Court. It appears that in view of the disputed questions of fact which were likely to arise whilst adjudicating the said writ petition, the plaintiff withdrew the said petition with liberty to file appropriate proceedings. The plaintiff thereafter filed Regular Civil Suit No. 676 of 2003 for declaration that the order dated 09.08.2002 was illegal and for mandatory and permanent injunction that the management should be injuncted from preventing him from acting as Headmaster. The substratum of the plaint was based on the fact that the principles of natural justice were not abided to by the Deputy Director of Education prior to the order dated 09.08.2002 being passed. It was the case of the plaintiff that proper opportunity was not granted to him by the Deputy Director of Education in the matter of the withdrawal of approval as Headmaster. It was also averred in the plaint that the documents in question which were submitted by the plaintiffs along with the application for approval were given to him by defendant No.6. The Management and the Government Authorities, who were arrayed as 4 defendants in the suit, filed their written statements and denied the allegations and contentions of the plaintiff. The trial Court, on the basis of the pleadings, framed relevant issues since the gravamen of the allegations of the plaintiff was as regards violation of principles of natural justice. The trial Court considered the said aspect while considering issue No.1 which was as regards the illegality of the order dated 09.08.2002. The trial Court on the basis of the record, which was before it, recorded a finding that there was no violation of the principles of natural justice as the plaintiff was granted adequate opportunity in the enquiry conducted by the Deputy Director of Education. The said finding recorded by the trial Court is in paragraph 15 of its judgment. The trial Court, insofar as the alleged resolution passed in the meeting dated 21.07.1999 was concerned, went through the entire minute book for the period between 1993-2002 and recorded a finding that the said minute book did not contain the minutes of any meeting held on 21.07.1999. The trial Court observed that the minutes of the meetings earlier to and after 21.07.1999 were found to be in place but, there were no minutes for the meeting purportedly dated 21.07.1999 the trial Court, therefore, reached a conclusion that no such meeting in fact had taken place and therefore, the resolution which was submitted along with the application for approval was false and fabricated. The trial Court also considered the aspect of fabrication in the light of the allegation of the management that the figure 1 has been fabricated to 7 in the purported document dated 21.07.1999. The trial Court on consideration of the evidence of the handwriting expert one Aher who was cross-examined by the plaintiff recorded a finding that the figure 1 was changed to figure 7 in the said document dated 21.07.1999. The trial Court, therefore, on the said two counts held that the approval to the appointment as Headmaster was granted on the basis of the forged and fabricated documents. The trial Court resultantly dismissed the suit. 5 The plaintiff aggrieved by the dismissal of the suit filed Regular Civil Appeal No.523 of 2009 the appellate Court also went threadbare through the evidence which was adduced and confirmed the findings of the trial Court. The first appellate Court on all the aspects namely that the principles of natural justice were not violated, that the approval was granted on the basis of the forged and fabricated documents, confirmed the findings of the trial Court. The First Appellate Court, therefore, taking in view the conspectus of the material that was available on record did not deem it fit to interfere with the findings recorded by the trial Court and dismissed the appeal. Both the Courts below, therefore, have concurrently recorded findings of fact on the aforesaid aspects as mentioned herein above. The learned counsel for the appellant Shri Kulkarni would contend that the management, if it was aggrieved by the approval granted by the Deputy Director on the basis of the alleged forged and fabricated documents, ought to have proceeded against the plaintiff under the provisions of the MEPS Rules. The learned counsel adverted to Rule 36 of the MEPS Rules to contend that such an enquiry would fall within the ambit of the said provision. The learned counsel next contended that the evidence adduced on behalf of the plaintiff in the trial Court has been glossed over by both the Courts below. The learned counsel further contended that the pleadings which were to the effect that the documents in question were handed over to the plaintiffs by respondent No.6 and evidence in that behalf has not been taken into consideration by the Courts below. Per contra, it is submitted by Mr. Manohar, the learned counsel appearing for the management, that the enquiry as regards whether approval was rightly or wrongly granted would not come within the ambit of MSPS rules as the said rules entail an enquiry where 6 major punishments are contemplated against a school teacher for a misconduct and not in respect of the grievance of the management as regards the wrongful approval granted. The learned counsel would contend that both the Courts below have taken into consideration the evidence on record and have recorded concurrent findings, as regards the compliance of the principles of natural justice as also as regards the forging and fabrication of the documents which were submitted by the plaintiff along with the application. The learned counsel would, therefore, contend that judgments of the Courts below are well considered judgments and therefore, do not raise any substantial question of law for consideration of this Court. Insofar as the first submission of Shri Kulkarni is concerned, it is required to be noted that the management was aggrieved by the approval granted by the Deputy Director of Education to the plaintiff on the basis of the documents which he had submitted. The management, therefore, had approached the Deputy Director of Education in that behalf. In my view, the enquiry into the aspect, as to whether the approval was rightly or wrongly granted would not fall within the ambit of Rule 36 of the MEPS Rules as the enquiry under the said rule is contemplated when a major penalty is sought to be imposed for a misconduct committed by a teacher. Such was not the instant case. In my view, therefore, the said Rule would have no application. It is also required to be noted that it was not the case of the plaintiff in the suit that the enquiry which was conducted by the Deputy Director was in breach of the MEPS Rules, in fact the plaintiff has not alluded to the said Rules in the plaint at all. As indicated above, the substratum of the suit was that the procedure in the matter of adherence to the principles of natural justice was not followed. In so far as the next submission of the learned counsel for the appellant that the material evidence which was adduced on behalf 7 of the plaintiff has not been considered by the Courts below is concurrent. In my view, just because there is no reference to each and every document or deposition of each witness in the judgments of the Courts below it would not mean that the courts below have not considered the same. In the instant case as the impugned judgments disclose that the Courts below on the consideration of the evidence which is on record have arrived at the said findings, especially considering the fact that the grievance of the plaintiff was as regards the violation of the principles of natural justice. In so far as the last submission of the learned counsel for the plaintiff namely that the pleadings as well as evidence adduced in respect of the said documents having been handed over to the plaintiff by the defendant No.6 is concerned, in my view, the same does not further the case of the plaintiff in any manner. Both the Courts below, on the basis of the documentary evidence in the form of the minute book, have held that the alleged meeting dated 21.07.1999 was never held and therefore, the document dated 21.07.1999, purportedly to be the minutes of the meeting, were forged and fabricated. If there was no meeting held and no resolution passed assuming that the said document has been given to the plaintiff by the defendant No.6, that would not help the plaintiff in any manner, as his appointment on the basis of the resolution passed in a meeting which was never held, can never be said to be legal. Both the Courts below having recorded concurrent findings on the above mentioned aspects, in my view, the Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. In view of the dismissal of the appeal the civil application does not survive and is accordingly disposed of. 8 At this stage, the learned counsel for the appellant/ plaintiff prays for continuation of the interim order which is operating till this date. The same is opposed by the learned counsel for the respondent management. In my view, in the facts and circumstances of this case, it would be just and proper to continue the interim order for a period of six weeks from date. JUDGE RR..