:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2694 OF 1985 1. The Manmad St.Xavier’s Society, Manmad, District Nasik, 2. Fr.Alex Colaco of Nasik ... Petitioners versus 1. The State of Maharashtra, 2. The Secretary to Govt., Education & Employment Dept., Mantralaya Annexe, Bombay, 3. The Presiding Officer, Schools Tribunal, Nasik, 4. Philip D. Ubale ... Respondents ... Mr.Randive i/by Mr. Owen Menezes for the Petitioners. Mr.K.V. Saste, A.P.P., for the Respondents Nos.1 and 2. Ms.Nandini Gupta i/by Mr.M.P.Vashi, for Respondent No.4. Respondent No.3 is formal party. ... CORAM : A.M.KHANWILKAR,J. :2: 30th March 2005 ORAL JUDGMENT : 1. This petition under Article 227 of the Constitution of India takes exception to the decision of the Schools Tribunal, Bombay, dated June 7, 1985, in Appeal No. GEN/NAS/5 of 1983. By the said order, the Tribunal has set aside the order of termination passed by the Petitioners against Respondent No. 4 dated 22nd February 1983 and ordered reinstatement of Respondent No.4 to the same post, which he was holding at the relevant time, and requiring the Petitioners to pay arrears of emoluments, including pay and allowances as due and payable to him from 1st March 1983 till the date of his reinstatement. 2. By this petition, the Petitioners originally challenged the validity of sections 8 and 13 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the Act") and Rules 28 to 33 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, :3: 1981 (hereinafter referred to as "the Rules") being violative of Articles 14, 19 and 30 of the Constitution of India, or, in the alternative, for declaration that the said provisions are not applicable to the Minority Institutions. In addition, the Petitioners questioned the correctness of the decision of the Tribunal, which is impugned herein. Insofar as the grounds regarding validity of the provisions of the Act and the Rules and/or application thereof are concerned, those grounds are not pressed before me. Counsel for the Petitioners fairly accepts that those grounds are not available to the Petitioners in view of the recent decision of the Apex Court and that the Petitioners would not press the said grounds. In other words, the only question that needs to be considered is : Whether the decision of the Tribunal, setting aside the order of termination passed by the Petitioners and directing reinstatement of Respondent No.4 with consequential benefits, can be said to be appropriate or otherwise ? 3. Respondent No. 4 was working as Assistant Teacher at the relevant time in St. :4: Xavier’s High School, run by the Petitioners. On 31st July 1982, when a programme was going on in the school, Respondent No. 4 allegedly misbehaved with the Head Master in the presence of other staff members, who had gathered for the said programme. In the context of that episode, show cause notice was given to Respondent No. 4 by the Manager of the School on 2nd August 1982 calling upon Respondent No. 4 to remain present before the School Committee on 3rd August 1982 to show cause why disciplinary action should not be taken against him. In response to the said show cause notice, Respondent No. 4 sent reply on 3rd August 1982 asserting that the said notice was based on misunderstanding, vague record and it violates the provisions of the said Rules. Respondent No.4 called upon the Manager to withdraw the said notice. By the same reply, Respondent No. 4 requested the Manager of the School to inform him the names of all the Members of the Management and the School Committee. In response, the Manager sent communication dated 3rd August 1982 to the Respondent No.4, which, according to the Petitioners, was show cause notice in terms of Rule 32 of the said Rules. By :5: this communication, the Manager of the School called upon Respondent No. 4 that inspite of opportunity, he has failed to offer any explanation to the School Committee. Accordingly, Respondent No. 4 was called upon to submit his written explanation regarding the event that took place on 31st July 1982, on or before 16th August 1982 as communication sent by Respondent No. 4 dated 3rd August 1982 was found to be unsatisfactory. It was made clear in this communication that if no written explanation is forwarded, necessary action will be taken in accordance with the said Rules. After receipt of this communication, Respondent No. 4 sent a detailed reply dated 13th August 1982. Respondent No. 4 asserted that from 1974 onwards, he has had difference of opinion on religious and social as well as personal grounds with the Priest of the Institute, Mr. Y.W. Amolik, who was taking leading part in the activities of the Institute. It is further stated that Respondent No. 4 abandoned Catholic Faith and stopped attending Church, for which reason the Priest conspired to throw him out from the School and from that period, deliberate :6: mental and financial torture was inflicted on him to spoil his record. It is then alleged that the Supervisor Fr. Alex conspired with the Principal, Fr. Henriques and started an illegal inquiry against Respondent No. 4 in 1976 and proceeded to terminate him, which was an unsuccessful attempt. Being agitated by failure to terminate Respondent No.4, the Priest, with the assistance of Mr. and Mrs. Amolik, started pressurising Respondent No.4 and his family in many ways. It is then alleged in the response that in 1979, those persons ignored the seniority of Respondent No.4 and attempted to declare him as surplus. It is also alleged that the Principal tried his level best to pressurise the other staff members to extend their support to him against Respondent No.4. It is then alleged that many institutions published pamphlets alleging malpractices indulged in the school. Reference is made to publication by the Editor of Deshdut in this behalf. It is alleged that those allegations went unchallenged. It is also alleged that the staff members were acting under the pressure of the Principal against the interest of Respondent No.4 and went to the :7: extent of signing circulars under pressure. It is stated that as the Respondent No. 4 was reinstated, the anger against Respondent No. 4 was precipitated. It is alleged that the Principal filed a false criminal action against the Respondent No.4 and openly claimed that he would prefer to close down the school, but not allow Respondent No. 4 to report for work. It is alleged that false accusations were made in the criminal case against Respondent No.4 and his wife, which allegations were decided by the Criminal Court and eventually, Respondent No. 4 was acquitted of the same by the appellate Court. It is also alleged in this response that the son of Respondent No. 4 was manhandled and no inquiry was held in that behalf. In this context, it was stated that the Respondent No. 4 had reason to believe that the Principal was responsible for that situation. It is then stated that complaint has been filed against the Principal by Respondent No. 4 in the Labour Court in regard to the fourth instalment of C.D.S. and another complaint against Father and Mr. Amolik in the Court for the defamation of Respondent No. 4 and his wife. It is then :8: alleged that the Principal made irresponsible statements about the behaviour of the Respondent No. 4 amongst the teachers, which aspect ought to be taken note of. It is then alleged that false accusations are made in the letter, which has been signed under the pressure of the Principal in respect of episode of 31st July 1982. In fact, the Respondent No. 4 was not present in the function of the teachers. At the end, it is emphatically stated by the Respondent No. 4 that the proposed inquiry against him was not only illegal, but was initiated with mala fide intention of spoiling his record. On receipt of this communication, the Manager of the School sent letter purported to be notice dated 18th August 1982 to the Respondent No.4. During the course of arguments, Counsel for the Petitioners suggested that this communication was in compliance of Rule 37 of the said Rules. That aspect will be dealt with a little later. For the nature of stand taken, I think it apposite to reproduce the said communication in its entirety. " St.Xavier’s High School Manmad. 18-8-1982. :9: Shri P.D. Ubale, St.Xavier’s High School, Manmad. Sub.: Submission of explanation in reply to your allegations. Ref.: Your letter dated 13-8-1982 1. In your letter dtd.13-8-1982, you have made certain serious allegations against the institution, the principal and some of the teachers. 2. You are hereby informed that you should prove in writing all the allegations contained therein with supporting evidence in respect of each allegation within seven days from the receipt hereof by you. 3. In case you are not able to substantiate your allegations within 7 days we will take necessary action according to the rules. Yours faithfully, Sd/- Manager." In response to this communication, Respondent No. 4 wrote to the Manager of the School on 23rd August 1982 that all the allegations made by him and as contained in his letter dated 13th August 1982 are true and correct and he would submit proof in support thereof at the appropriate time. Thereafter, the inquiry proceeded against the Respondent No. 4 by framing four charges. The :10: substance of the charges framed at the inquiry reads thus : (1) The employee with the help of his wife and others conspired to attack the Head Master on 27-7-1979 to have him falsely charged for outrage of modesty. (2) Attempt on the part of the employee to defame members of the Management, Head Master and some members of the staff through false accusations. (3) Grave misconduct and insult of Head Master and staff members on 31-7-1982. (4) False allegations by employee against the Management, Head Master and some members of the Staff in his letter dated 13th August 1982 and false denial of his presence at the function on 31-7-1982. The inquiry proceeded further culminating with the finding recorded by the Committee holding that all the charges have been proved against the :11: Respondent No.4. However, the Committee recommended termination of service only in respect of charges Nos.1, 2 and 4 as it observed that the Charge No. 3 invited minor penalty. Acting on the basis of the said recommendation, the Management proceeded to issue order of termination on 22nd February 1983, which was to come into effect from 1st March 1983. After the said order was served on the Respondent No.4, the same was challenged by the Respondent No. 4 before the Schools Tribunal, Bombay, by way of appeal under section 9 of the Act. The Tribunal has summarised the gravamen of the grievance of the Respondent No. 4 and the basis on which the order of termination was put in issue, in para 2 of the judgment under challenge. The relevant portion of the said para reads thus : " . . . It is contended that the Appellant was not suspended during the period of enquiry which will go to show that the charges alleged were not of a serious nature. It is, therefore, contended that it was not necessary to form the enquiry committee against the Appellant. It is then pointed out that the charge sheet was issued by the Respondent in the capacity of ‘Adhyaksha, Enquiry Committee’ which is against the provisions of Rule 37(1) of the Rules, :12: 1981. It is also pointed out that the charge sheet contains 4 allegations while the show cause notice previously issued contained only one charge. Therefore, it is pointed out that the Appellant has got the opportunity to explain only one charge. It is, therefore, contended that the enquiry committee has no right to proceed on the illegal charge sheet which contained additional 3 charges and the Appellant was not given any opportunity to defend himself. It is pointed out that the so called charge No.1 regarding the physical assault has already been decided by Judicial Magistrate, Manmad and the Writ Petiiton No.(Cri) 7516 of 1981 in connection with the said decision of the Manmad Court has already been summarily rejected by the Hon’ble High Court at Bombay. It is contended that the ruling of the High Court is binding to all to enquire the first charge, i.e. Charge No.1. As regards the charge No.2 the Appellant has pointed out that the different associations published a booklet containing charges of corrupted affairs relating to the institution. It is pointed out that the Appellant was not concerned with the matter. It is contended that there was a special working committee for the said publication in which the Appellant was not a party. The Appellant being a secretary of the Secondary Teachers’ Association signed the Booklet on behalf of the Association and not as an Assistant Teacher of the School. Therefore, it is contended that he cannot be called for enquiry on charge No.2 because it is neither connected with school working nor mentioned in Rule 28(5). It is pointed out that if the institution has really been defamed the management would have gone in the Court of Law against the publishers of the booklet. It is alleged that the management unnecessarily tried to blame the Appellant for the same. Then as regrds the Charge No. 3 and 4, it is :13: pointed out that the incident alleged in the said charges took place in the private ceremony of the institution. The ceremony was connected with the Hon’ble St. Ignecias Layolakar whose name is not included in the National Patriots as per annexures 27 of the S.S. Code. It was purely a religiouis ceremony out of a school working time. The Appellant did not remain present as it was not the school function. It is pointed out that being angry with the Appellant for his absence the official made false charges on the Appellant with the help of other employees and compelled them to complaint against the Appellant. It is alleged that on the basis of that complaint, the School Committee punished the Appellant with stoppage of increment. It is pointed out that the charges Nos. 3 and 4 are not related with the school working, school and school function and, therefore, the School Committee has no right to interfere in the matter, similarly the Appellant has gone in an appeal to the Deputy Director of Education against the punishment based on charge No. 3 and 4. It is pointed out that as the matter is under consideration of the Dy. Director of Education the enquiry committee has no right to interfere the same again. The Appellant then pointed out that the representative on the enquiry committee on behalf of the Management, Fr. Oscar Rozario, is himself executive officer of the management; that he has issued a show cause notice and charge sheet to the Appellant, therefore, being the complainang officer, he cannot be a member of the Enquiry Committee. It is contended that it is against the natural justice that who alleged, he himself adjudicates. It is pointed out that the Respondent is the authority to appoint, dismiss etc. the employees, whose witnesses are taken before him cannot be acceptable. It is also pointed out that the Appellant has gone in an appeal :14: against him, being Chairman of the School Committee. It is contended that Fr. Oscar Rozario cannot be a member of enquiry committee; that his presence as an enquiry officer stands there a great obstacle in establishing the natural justice. It is then pointed out that upo 20-12-1982 Fr. Alex Colase, the Head of the School was the nominee of the School Committee on the Enquiry Committee in contravenion of the Ruling of the Hon’ble High Court of Bombay and from 29-12-1982 Br. Misquitta was introduced in Enquiry Committee in place of Fr. alex Colase. It is contended that the Appellant has objected to his representation stating that he was never a member of the school committee. It is also pointed out that the management did not provide the Appellant with the list of the members of the School Committee and the management hence the presence of Br. Misquitta in the enquiry committee is illegal and the proceedings of the enquiry committee is unlawful. The Appellant also challenged the constitution of the School Committee. It is also pointed out that the meeting of the enquiry committee should have been caled by the Convener but on 26-10-1982 and 20-2-1983 the meetings were called by the Manager. According to the Appellant it is breach of rule and hence the working of these meetings become illegal. It is then pointed out that the working of the enquiry committee was continued on holidays against the objection of the Appellant and it is therefore the breach of the Rule 36(6) of the Rules, 1981. It is also pointed out that the meeting on 24-1-1983 should have been adjourned because the representative of the Appellant had to go to Delhi to attend the admission of his own case but the Convener without adjourning conducted the meeting for consecutive three days i.e., 24, 25 and 26 January 83 in the absence of the Appellant and his representative. Hence it is contended that the working of the Enquiry committee is illegal. The :15: Appellant has challenged the proceedings of the enquiry committee on the various ground and also contended that the enquiry committee has no right to enquiry into the personal and private matters. It is pointed out that the witnesses presented before the enquiry committee are not mainly eye witnesses but the ear witnesses which are not acceptable by law. It is also pointed out that the Appellant was not allowed to cross-examine the persons who signed the complaints against him as some of the employees were on casual leave on the same day. It is pointed out that the management tried to terminate the services of the Appellant twice in 1976 and in 1979 and so this enquiry has been done by prejudiced mind. It is pointed out that the Appellant had made many complaints against the Headmaster but the management did not take any cognizance. It is alleged that on a single complaint of the teachers and the Headmaster, the Management framed a charge sheet and harassed the Appellant. According to the Appellant it is the violation of the principles of natural justice. It is alleged that the management has interferred in the family affairs of the Appellant and tried to harass him in family life and also issued false memos. It is contended that the allegations are based on the religiouis differences. According to the Appellant he is a protestant Christian and the Respondent nd the officials of the management are Roman Catholics; that the Appellant does not use to go to the Roman Catholic Church and therefore the management wants to harass the Appellant by terminating his services. It is also pointed out that some of the students beat the son of the Appellant in the school premises and due to the bearing he became a patient of feats. It is further contended that the Appellant requested the Headmaster to enquire the matter but he purposely avoided to do any inquiry. It clearly :16: shows the prejudiced mind against the Appellant. It is pointed out that all the allegations made against the Appellant are not related with the school working and are not mentioned in Rule 28(5). It is pointed out that the teaching and the working of the Appellant is so good that there is no any adverse remark in his confidential report. Therefore, it is contended that the enquiry made against the Appellant is quite illegal, mala fide, bias and against the principles of natural justice. . . ." The stand taken on behalf of the Management to justify the order of termination on merits is adverted to by the Tribunal in para 5 of the impugned judgment. The Tribunal, after considering the rival position and on the basis of materials on record, took the view that the action against the Respondent no. 4 was replete with mala fide. It has also noticed serious irregularities committed by the Management in the conduct of the enquiry which, in its opinion, vitiated the entire action. It is observed that the four charges framed against the Respondent No. 4 were never indicated to the Respondent NO. 4 in the show cause notice, but have been framed without giving opportunity to the Respondent No.4 to explain the same and , more so, on the basis :17: of the reply given by the Respondent No. 4 on 13th August 1982 in response to the so-called show cause notice dated 3rd August 1982. While dealing with the respective charges, the Tribunal noted that insofar as the first charge is concerned, the Respondent No. 4 was already tried and acquitted by the competent Criminal Court decided on 20th January 1981, as a consequence of which the Respondent No. 4 came to be reinstated and, therefore, the same ground could not be once again made basis to take disciplinary action against the Respondent No.4. The Tribunal then observed that the evidence to support the allegation in charge No. 1 was unsatisfactory. It further observed that in any case as the Management had already considered the said charge earlier and termination based on the said charge was withdrawn and the Respondent No. 4 reinstated, the enquiry on the basis of same ground could not be permitted. Insofar as the second charge is concerned, the Tribunal noted that the Respondent NO. 4 has signed the "Arop Patrika" not as an Assistant Teacher, but as Secretary of the Union. The article was not written by the Respondent No. 4. The Tribunal :18: took the view that the act of the Respondent No. 4 signing the "Arop Patrika" as Secretary of the Union cannot be termed as an act of misconduct in terms of Rule 28(5)(a) of the said Rules. Moreover, the said "Arop Patrika" was published or came into existence some time in 1979 and no remedial steps were taken by the Management since then. The Tribunal further noted that the "Arop Patrika" was published by the Samiti with which the Respondent No. 4 had no concern as he was not member of the said Samiti (Committee). The Tribunal further observed that this charge has been invoked by the management only after receipt of the reply sent by Respondent No.4 dated 13th August 1982 and that too without giving an opportunity to the Respondent No.4 to explain why such a charge should not be framed against him. Insofar as charge No. 3 is concerned, the Tribunal held that as it was expected of the management that the said charge deserved only minor punishment and that punishment was already inflicted on Respondent No. 4; and as the same (order of punishment) which was already subject matter of challenge before the appellate authority, the same was of no avail. Insofar as :19: charge No. 4 is concerned, the Tribunal has opined that even that charge was the outcome of the reply given by Respondent No. 4 to the so-called show cause notice dated 3rd August 1982 by a letter dated 13th August 1982. The Tribunal has held that it was absurd to make out a case of misconduct on the part of Respondent No. 4 on the basis of explanation given by him to the show cause notice. It then observed that no opportunity to explain as to why such a charge should be framed and proceeded with was given to the Respondent No. 4. It further observed that the evidence about the presence of the Respondent No. 4 at the meeting held on 31st July 1982 was doubtful, as witnesses did not depose as to what was