1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.4657 of 1990 Shri Datta Shikshan Prasarak Mandal & anr. Petitioners Vs. Shri Dinkar Krishna Gawde Respondent Mr.M.S.Topkar for petitioners. Mr.V.S.Masurkar with Mr.G.S.Kulkarni and Ms. Sonali Joshi for respondent. CORAM: B.H.MARLAPALLE,J. August 29, 2006. ORAL JUDGMENT: 1. This petition filed by the Management and the Head Master of Janta High School at Shirol, Dist. Kolhapur assails the judgment and order dated 11/9/1990 of the School Tribunal thereby allowing Appeal No.148 of 1987. The said appeal was filed by the present respondent against the order of termination dated 3/10/1987 by way of punishment for an act of major misconduct as defined under the MEPS Rules, 1981 and the appeal was filed under Section 9 of the MEPS (Condition of Service) Regulation Act, 1977 (for short "the Act"). 2. The brief facts are that the Respondent who was holding the qualifications of B.Sc., B.Ed. came 2 to be appointed as an Assistant Teacher in the Janata High School at Shirol run by Shri Datta Shikshan Prasarak Mandal, a Public Charitable Trust (old Society for short) and also a Society registered under the Societies Registration Act, 1860. The Petitioner no.2-Headmaster is one of the five Trustees of the said Society. The respondent was confirmed as Assistant Teacher in June 1975. He came to be promoted and appointed as Supervisor of the said School in the year 1983-84 and was issued a show cause notice dated 19/1/1987 in respect of 11 allegations. He replied to the said show cause notice on 13/2/1987 and denied the allegations and he concluded the said reply by alleging that the show cause notice was issued to him under a misbelief that the New English High School started by Shri Shahu Shikshan Prasarak Mandal at Shirol was started as a rival competing school. He also offered to resign from the post of Secretary of Shri Shahu Shikshan Prasarak Mandal (new Society for short), another Society/Trust. The respondent had become the Secretary of that Trust on 30/9/1979. The management addressed a letter dated 27/2/1987 to the respondent by noting that he had offered to resign from the post of the Secretary of the new Society and informed him 3 that there were other allegations against him as well and they were serious in nature and, therefore, it was decided to hold an enquiry into the said allegations. He was informed that a charge-sheet would be served on him. Under Rule 36(1) he was also called upon to nominate his representative on the enquiry committee and accordingly by his letter dated 21/3/1987 he nominated Shri K.S. Sankpal, who was working as an Assistant Teacher at Smt.L.P.Girls’ High School, Jaisingpur and the said Mr.Sankpal gave his consent by addressing a letter to the management on 21/3/1987. The management nominated its representatives Mr.H.Y. Gawade as the Convener and Mr.B.S. Mudbidrikar (a State Awardee Teacher). Thus the enquiry committee was made of Mr. H.Y. Gawade (Convener), Mr.B.S. Mudbidrikar (State Awardee Teacher) and Mr. K.S. Sankpal (Representative of the Respondent). The charge-sheet was issued to him on 26/3/1987 and the same was replied by the respondent on 4/4/1987 and he denied the charges. Therefore, the enquiry proceeded and the first sitting appears to have commenced on 24/4/1987. In the subsequent sittings apart from these three members, the head of the school or the Secretary of the old Society and the respondent teacher appeared 4 and exchanged documents. The enquiry was concluded on 17/6/1987. When it came to the submission of findings, the enquiry committee was divided in its opinion. As per the representative of the respondent the charges were not proved as there was no material in support of any of the charges and in any case the respondent becoming the Secretary of the new Society was not an act of misconduct. Whereas the other two members of the enquiry committee in their report dated 28/6/1987 held that the charges were proved against the respondent - teacher and the charges were of serious nature. Consequently they recommended the termination of service by way of punishment. By consolidating the report dated 28/6/1987 of the majority members and the report of Mr. Sankpal dated 29/6/1987 a common report of the enquiry findings was made on 8/7/1987 and a copy of the same was also made over to the respondent. By the order dated 3/10/1987 the respondent came to be dismissed from service with effect from 5/10/1987. 3. The respondent in his appeal before the School Tribunal challenged the termination on the grounds that it was illegal, improper and misconceived, it was against the principles of natural justice, the 5 management acted against him with malice, the charges levelled against him were frivolous, false, baseless and imaginary, the constitution of the enquiry committee was illegal and improper, he was not given any opportunity of defending himself before the enquiry committee, the members of the enquiry committee were biased and acted with prejudice against him, the enquiry committee did not follow the MEPS Rules, he was not allowed to lead evidence and examine witnesses in support of his case before the enquiry committee, no documents were placed before the committee in support of the charges levelled against him, there was no reason for the head of the school to remain present in the enquiry and the members of the enquiry committee failed to apply their mind to the facts and circumstances of the case while holding him guilty. The appellant further stated that the convener of the meeting Mr.H.Y. Gawade was admitted to the hospital on 23rd July 1987 and he died while in the hospital on 16th September 1987. As per the appellant the enquiry report holding him guilty was neither prepared nor was signed by Mr. Gawade and, therefore, the said report could not be a majority opinion so as to hold him guilty of the charges levelled against him. He went 6 to the extent of alleging that the enquiry report was prepared after the demise of Mr. Gawade by way of an afterthought and it was back dated. The enquiry conducted against him was not with an open mind but with a predetermined decision to award him the punishment of dismissal from service. 4. The management filed its reply before the School Tribunal and opposed the appeal. It was submitted that Janta High School had started in the academic year 1967-68 by Shri Datta Shikshan Prasarak Mandal (the 1st petitioner). It was reiterated that the charges levelled against the respondent were proved in the enquiry conducted by the enquiry committee duly constituted as per the provisions of Rule 36(2) of the MEPS Rules, the principles of natural justice were duly followed and as the findings were to be recorded only on the basis of the admitted documents, neither of the parties preferred to adduce oral evidence before the said committee. The management admitted that though there was no presenting officer, the head of the school or the Secretary of the old Society remained present in the enquiry committee proceedings to submit or receive documents on behalf of the school / Trust. The 7 written statement supported the action of dismissal from service. It was also pointed out that Mr.H.Y. Gawade was hospitalised on 23/7/1987 and he expired on 16/9/1987 but the enquiry report was dated 8/7/1987 i.e. much before Mr.Gawade was admitted in the hospital. 5. The School Tribunal after considering the arguments of both the parties, the findings of the enquiry committee and its constitution etc. held in the impugned judgment that there was breach of Rules 36(2), 37(1), 37(2)(a)(i), 32(2)(a)(iii), 32(2)(a)(ii), 37(2)(d)(ii), 37(4) and this was conceded by the learned Advocate for the management before it. So far as the findings of the majority Committee members are concerned the Tribunal observed that it was unable to understand as to who were examined as witnesses to prove the charges against the appellant and who produced the documents before the Enquiry Committee and in the absence of any substantial evidence for proving the said documents it was not permissible for the majority members to act upon the said documents. The source of the documents was also not known and the majority members were totally ignorant about the procedure for 8 conducting the enquiry, recording evidence and for production as well as proving of the documents. Under such circumstances there was no legal evidence to hold that the charges against the appellant were proved, concluded the Tribunal. 6. The School Tribunal framed the following issues and answered them accordingly: (1) Whether the Management of respondent no.1 - Mandal had complied with the provisions contained in rule 33 of the Mah. Employees of Private Schools (Conditions of Service) Rules, 1981 in regard to inquiry? No. (2) Whether the inquiry committee has been properly constituted as laid down in rule 36(2)(a) of the Rules of 1981? Yes. (3) Whether the Inquiry Committee has followed the due and proper procedure of conducting the inquiry against the appellant? No. 9 (4) Whether the appellant was given reasonable opportunity to defend himself before the Inquiry Committee? No. (5) Whether the findings of the majority members of the Inquiry Committee are supported by legal evidence? No. (6) Whether the order of termination dt.3.10.87 is legal and valid? No. (7) Whether the appellant is entitled to reinstatement and back wages? Yes. . Section 4(6) of the Act states that no employee of a private school shall be suspended, dismissed or removed or his services shall not be reduced in rank by the management, except in accordance with the provisions of the Act and the Rules made in that behalf. The MEPS Rules, 1981 have been framed under the Act and Rule 28 deals with the removal or termination of service of a temporary employee other than on probation - a permanent employee and clause (5) of the said Rule states that an employee shall be liable to be punished on one or 10 more of the following grounds viz. (a) misconduct; (b) moral turpitude; (c) wilful and persistent negligence of duty and (d) incompetence. For the purpose of Rule 28(5) the terms misconduct, moral turpitude, wilful negligence of duty and incompetence have been defined as under: (a) "Misconduct" shall include the following acts, namely: (i) breach of the terms and conditions of service laid down by or under these Rules; (ii) violation of the code of conduct; and (iii) any other act of similar nature (b) "Moral turpitude" shall include the following acts, namely : (i) immodest or immoral behaviour with a female or male student or employee; and (ii) any other act of similar nature. 11 (c) "Wilful negligence of duty" shall include the following acts namely: (i) dereliction in or failure discharge, any of the duties prescribed by or under these rules; (ii) persistent absence from duty without previous permission; and (iii) any other act of similar nature (d) "Incompetence" includes the following acts, namely: (i) failure to keep up academic progress and upto date knowledge in spite of repeated instructions in that behalf and provisions of facilities; (ii) failure to complete the teaching of the syllabus determined for the year within the fixed periods for reasons not beyond his control; and 12 (iii) any other act of similar nature. . Rule 29 deals with penalties viz. (a) warning, reprimand or censure, (b) withholding of an increment for a period not exceeding one year, (c) recovery from pay or some other amount as may be due to him of the whole or part of any pecuniary loss caused to the Institution by negligence or breach of the orders, (d) reduction in rank and (e) termination of service. Rule 31 sets out the classification of penalties i.e. minor penalties and major penalties. Reduction in rank and termination of service are stated to be major penalties. Rule 33 prescribes the procedure for inflicting major penalties. Sub-rule (1) is relevant for the present purpose and, therefore, it is reproduced as under: "33(1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employee 13 under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the junior College of Education and Technical High Schools, of the Deputy Director. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the Management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such order." . Rule 36 speaks of the enquiry committee to be constituted. As per sub-rule (1) the enquiry will be conducted by the enquiry committee and the composition of the enquiry committee also has been set out in sub-rule (2). In the case of an assistant teacher the composition of the enquiry committee is as under: 14 (i) one member from amongst the members of the management to be nominated by the management or by the president of the management if so authorised by the management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of the decision of the management; (ii) one member to be nominated by the employee from amongst the employees of any private school; and (iii) one member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred. . Rule 37 deals with the procedure of enquiry and the same to the extent relevant is reproduced hereinbelow: "37(1) - The Management shall prepare a charge-sheet containing specific charges and shall hand over the same together with the statement of allegations and the explanation of the employee or the Head as the case may be, to the Convenor of the Inquiry Committee and also forward copies thereof to the 15 employee or the Head concerned by registered post acknowledgement due, within 7 days from the date on which the Inquiry Committee is deemed to have been constituted. 37(2)(a) Within 10 days of the receipt of the copies of charge-sheet and the statement of allegations by the employee or the Head, as the case may be- (i) If the employee or the Head, as the case may be, desires to tender any written explanation to the charge-sheet, he shall submit the same to the Convenor of the Inquiry Committee in person or send it to him by the registered post acknowledgement due. (ii) If the Management and the employee or the Head, as the case may be, desire to examine any witnesses they shall communicate in writing to the Convenor of the Inquiry Committee the names of witnesses whom they 16 propose to so examine. 37(2)(d)(i) The Management shall have the right to lead evidence and the right to cross-examine the witnesses examined on behalf of the employee (ii) The employee shall have the right to be heard in person and lead evidence. He shall also have the right to cross-examine the witnesses examined on behalf of the Management. 37(4) The Convenor of the Inquiry Committee shall forward to the employee or the Head, as the case may be a summary of the proceedings and copies of statements of witnesses, if any, by registered post acknowledgement due within four days of completion of the above steps and allow him a time of seven days to offer his further explanation, if any. 7. In the instant case the Tribunal held that the 17 enquiry committee was properly constituted and, therefore, Rule 36(2)(a) was duly followed. However, as per the Tribunal Rule 36(2) was not complied with. As per sub-rule (2) of Rule 36 if the Chief Executive Officer or the President as the case may be, finds that the explanation submitted by the employer or the head referred to in sub-rule (1) is not satisfactory, he shall place it before the management within 15 days from the date of receipt of the explanation. The management shall in turn decide within 15 days whether an enquiry be conducted against the employee and if it decides to conduct the enquiry, the enquiry should be conducted by the enquiry committee constituted in the manner set out. The Tribunal noted that when the respondent - teacher submitted explanation dated 13/2/1987 and it was received by the management on 14/2/1987, it was found to be unsatisfactory and, therefore, it was necessary for the President or the Secretary to place the same before the management within 15 days from 14/2/1987. It was further necessary for the management to decide within 15 days whether an enquiry should be conducted against the teacher and as there was nothing on record to show that the appellant’s explanation was placed before the management, the Tribunal held that 18 the management failed to comply with the requirements of Rule 36(2) of the Rules. 8. The Scheme of Rules 36 and 37 read together mandates that the explanation submitted to the charge-sheet is considered by the management and if found to be unsatisfactory and the management decides to proceed against the delinquent teacher, an enquiry will have to be conducted by a committee as stated in the manner prescribed. The committee while conducting the enquiry will follow the procedure as set out so as to comply with the principles of natural justice and full opportunity will be given to the delinquent employee to defend his case including an opportunity to cross-examine the management’s witnesses, produce his own witnesses and also place on record documentary evidence as well as demand certain documents to be placed on record if found relevant. The compliance of such rules and the failure partly thereof fell for consideration by the Apex Court in the case of State Bank of Patiyala & ors. Vs. S.K. Sharma [AIR 1996 SC 1669] [AIR 1996 SC 1669] [AIR 1996 SC 1669] and it was stated, inter alia, as under: "... There may indeed be any number of 19 varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and equiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice" / "no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin,(Supra). It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression (Calvin v. Carr, (Supra). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer’s report (Managing Director, ECIL v. B. Karunakar, (supra) or without affording him a due opportunity of 20 cross-examining a witness (K.L.Tripathi, (supra) it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct in the light of the above decision to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar, (supra) should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid." 9. Regarding the principles of natural justice, 21 in Jankinath Sarangi v. State of Orissa [(1969) 3 [(1969) 3 [(1969) 3 SCC SCC SCC 392] 392] 392] the Supreme Court observed as under: "... There is no doubt that if the principles of natural justice are violated and there is a gross case this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right...." . In the case of Union of India & ors. v. P.K. Roy & ors. [(1968) 2 S.C.R. 186] [(1968) 2 S.C.R. 186] [(1968) 2 S.C.R. 186] the Apex Court reiterated, "the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the person affected, the scheme and policy of the statute and other relevant circumstances disclosed in a particular case." . In K.L. Tripathi vs. State Bank of India [AIR [AIR [AIR 1984 SC 273] 1984 SC 273] 1984 SC 273] a three-Judge Bench stated as 22 under: "It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle, has to be judged, in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed." 23 10. In short the departmental enquiries instituted by way of disciplinary measures against the delinquent employees must meet the basic concept of fair-play, audi alteram partem and the domestic tribunal must be constituted in keeping with the rules. In the instant case the show cause notice was issued on 19/1/1987 which was replied on 13/2/1987. The charge-sheet was issued out 26/3/1987 setting out the eleven charges. By his reply dated 4/4/1987 he denied that he was guilty of any act of misconduct or the code of discipline. After his reply to the show cause notice was received on 14/2/1987 and prior to the said reply, by letter dated 4/2/1987 he was already informed the management’s decision to constitute an enquiry committee. In the show cause notice dated 19/1/1987 he was called upon to submit his explanation within two weeks and the said period had expired by 3rd February 1987. The management, therefore, communicated its decision on 4/2/1987 for constituting an enquiry committee and calling upon the respondent - teacher to intimate the name of his nominee. Respondent had received this letter