1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4282 OF 2008 Sharada Ashok Suryagandh ..Petitioner. Vs. State of Maharashtra and others ..Respondents. ..... Mr. S.S. Pakale for the Petitioner. Mr. P.P. Kakade, AGP for Respondents 1 and 2. Mr. S.J. Panicker for Respondents 3 to 5. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 20th June, 2008. P.C. : 1. Rule, made returnable forthwith. The learned counsel appearing for the Respondents waive service. By consent of the learned counsel, taken up for hearing and final disposal. 2. The Petitioner was appointed as an Assistant Teacher on probation for a period of two years on 24th May, 1993 by the Third and Fourth Respondents. Her services came to be confirmed from 1995. The Third and Fourth Respondents conduct an aided secondary school by the name of Gurukul Vidyalaya. On 14th November, 2000 the Petitioner was placed on suspension 2 pending disciplinary proceedings. The prior approval of the Education Officer was obtained under Rule 35(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. A charge sheet was issued to the Petitioner on 23rd November, 2000. After disciplinary proceedings were completed, the Petitioner was terminated from service on 16th April, 2001. Some time in December 2001 the Petitioner filed an appeal before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. By its judgment dated 31st March, 2008 the School Tribunal came to the conclusion that the charges framed against the Petitioner were vague and that the management of the School had failed to supply due and adequate particulars of the charges levelled against the Petitioner. The Tribunal held that for instance the first major head of allegations was that the Petitioner had granted pass marks to students who had failed in the examination while another head related to the complaints of students and parents against the Petitioner. The Tribunal has noted that absolutely no particulars of the students or of their roll numbers were furnished in the statement of allegations nor did the statements of allegations contain the names of the persons who had complained against the 3 Petitioner. In these circumstances, the Tribunal held that the charge sheet suffered from vagueness. As a consequence thereof, the Petitioner was held to have been deprived of the opportunity of defending the charges levelled against her. The enquiry was therefore held to be vitiated. However, the Tribunal held that the management could not be directed to reinstate the employee in service straightaway, but could be relegated to pursuing the enquiry from the stage when the illegality was found. Since the illegality was at the stage of the issuance of the allegations, the management was permitted to conduct a fresh enquiry from the stage of the issuance of a statement of allegations by the issuance of a fresh charge sheet to the Petitioner in accordance with law. The management was permitted to place the Petitioner under suspension while holding a fresh enquiry and the enquiry was directed to be completed within a period of 120 days. 3. After the judgment of the Tribunal, the management placed the Petitioner under suspension on 12th June, 2008. A fresh charge sheet has been served on the Petitioner in the meantime on 2nd June, 2008. The Petitioner is before the Court in proceedings under Articles 226 and 227 of the Constitution to challenge the 4 judgment of the Tribunal. Two broad heads of challenge have been urged before the Court. The first submission that has been urged is that the Tribunal could not in the circumstances of the case have directed the management to hold a fresh enquiry against the Petitioner once it came to the conclusion that the charges that were framed against the Petitioner were vague. The second submission is that in any event once the first enquiry was held to be vitiated, the Petitioner would be entitled to her entire salary from the date of the order of first suspension until the Petitioner came to be placed on suspension on 12th June, 2008 after the judgment of the Tribunal. Learned counsel, however, fairly submitted that insofar as the period after 12th June, 2008 is concerned, the management, if it is held to be entitled to hold an enquiry would be liable to pay the subsistence allowance thereafter in accordance with law. 4. Insofar as the first ground of challenge is concerned, the issue before the Court is not res integra. In the State of Punjab v. Dr. Harbhajan Singh Greasy1 an enquiry was held to have been vitiated on the ground that though the report proceeded on an 1 (1996) 9 SCC 322. 5 admission of the charge sheeted employee, the admission was not taken in writing and the employee had subsequently denied having made an admission. The Supreme Court held that in such a case the High Court was not justified in directing reinstatement with consequential benefits and that the proper course of action would have been to issue a direction permitting the disciplinary authority to conduct the enquiry from the stage at which an illegality was found to have been committed and that pending the enquiry the employee must be deemed to be under suspension. The Supreme Court observed as follows : “It is now a well-settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon. The High Court had committed illegality in omitting to give the said direction.” 5. A very recent judgment of the Supreme Court in Vidya Vikas Mandal v. The Education Officer2 arose out of a disciplinary proceeding under the Maharashtra Employees of Private Schools 2 2007(2) ALL MR 461. 6 (Conditions of Service) Rules, 1981. In that case, it was found that there was non-compliance with the mandatory requirements of Rule 37(6), in that the final report of the enquiry was not submitted by all the three members. The Supreme Court directed the management of the school to constitute a committee in accordance with the requirement of the rules and observed that the employee shall be treated under suspension and be entitled to his subsistence allowance in accordance with the rules with effect from the date of his termination from service. A full Bench of this Court in Saindranth Jagannath Jawanjal v. Pratibha Shikshan Sanstha3 has followed the law laid down by the Supreme Court in Harbhajan Singh's case by holding that where an enquiry has not been held or in the event that the enquiry is found to be defective, the proper relief would be to set aside the dismissal from service with a direction to the management to hold a fresh enquiry from the stage where the illegality had occurred. The Full Bench has observed that in such a case the question of backwages would depend upon the final outcome of the fresh enquiry and it would be open to the School Tribunal to adopt the same “route ” which was adopted by the Supreme Court in Harbhajan Singh's case. These principles 3 2007(4) ALL MR 281. 7 have also been followed by a Learned Single Judge of this Court in Adarsh Vidya Mandir Trust v. Awadesh Narayan Komal Singh4 and in President/ Secretary Pioneer Education Trust v. Janardan Mitharam Jangale5. It may be noted that the decision in Pioneer Education Trust involved a situation where the illegality which was noticed by the Tribunal related to the framing of improper charges and the submission of the report beyond the stipulated period. The Learned Single Judge observed that the management would be free to proceed against the employee afresh from the stage of framing of charges and to place the employee under suspension in the meantime. 6. The law as it therefore emerges clearly is that where a defect has been found in a disciplinary enquiry under the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the School Tribunal ought to issue a direction permitting the management to cure the illegality by continuing the enquiry from the stage at which the defect had occurred. A situation where no enquiry has been held stands on the same footing as one where the enquiry is found to be defective. The 4 2004(4) Mh.L.J. 173. 5 2008(3) ALL MR 406. 8 Tribunal was therefore justified, while holding that the charge sheet was vague, in permitting the management to issue a fresh charge sheet by curing the defect. It may be noted that the management has not challenged the order of the Tribunal. 6A. But the submission which has been urged on behalf of the Petitioner is that the Petitioner should be held to be entitled to full salary from the date of the order of suspension until a fresh order of suspension came to be passed on 12th June, 2008 following the judgment of the Tribunal. Learned counsel submitted that the effect of the judgment of the Tribunal must be construed to be that there were no charges whatsoever against the Petitioner in the eyes of law until a fresh charge sheet was issued after the judgment of the Tribunal. As a consequence, it was urged that the Petitioner would be entitled to full salary. The submission that the effect of the judgment of the Tribunal is that there is an absence of any charge against the Petitioner cannot be accepted. The Petitioner was originally suspended pending disciplinary proceedings and in contemplation of those proceedings on 14th November, 2000 the charge sheet which was served on the Petitioner was found by the Tribunal to suffer from 9 vagueness. The Tribunal held that as a consequence there was a breach of the principles of natural justice, since the Petitioner was deprived of an adequate opportunity of defending herself as a result of the indefinite nature of the charges that were originally framed. That defect, however, would not result in an order of reinstatement with full backwages because the defect was capable of being cured by the service of a fresh charge sheet containing a sufficient description of the allegations which the Petitioner was required to meet in the course of the disciplinary proceedings. A fresh charge sheet was thereafter served upon the Petitioner and she was placed under suspension once again pending the disciplinary proceedings on 12th June, 2008. The suspension of the Petitioner on 14th November, 2000 pending the disciplinary proceedings was not obliterated and the period after 14th November, 2000 until the service of the fresh charge sheet in June 2008 will have to abide by the result of the disciplinary enquiry. At this stage, no direction can be issued to the effect that the Petitioner would be entitled to her full salary prior to the service of the fresh charge sheet and the suspension in June 2008. 7. Counsel appearing for the Petitioner is, however, right in 10 urging that the Petitioner would be entitled to the payment of subsistence allowance in accordance with the provisions of Rule 34 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. During the pendency of the disciplinary proceedings on the first occasion the Petitioner was paid her subsistence allowance upto the date of termination from service which took place on 16th April, 2001. Proceedings before the School Tribunal were thereafter pending until the appeal was disposed of on 31st March, 2008. As a result of the judgment of the School Tribunal the order of dismissal of the Petitioner stands set aside and the relationship of employer and employee would stand restored for the purpose of enabling the management to continue the disciplinary enquiry. In view of the judgments of the Supreme Court in Harbhajan Singh's case and in Vidya Vikas Mandal, the Petitioner would be entitled to the payment of subsistence allowance for the entire duration. It is clarified that the subsistence allowance shall be paid to the Petitioner for the period between 16th April, 2001 (the date of the original order of termination) until the date of the judgment of the Tribunal (31st March, 2008) and thereafter until the conclusion of the disciplinary proceedings. The arrears shall be paid within a period of four 11 weeks from today and the subsistence allowance payable for the subsequent months shall be paid regularly as and when it falls due. The period of suspension shall abide by the final result of the disciplinary proceedings. The payment of subsistence allowance shall be computed in accordance with law having regard to the judgment of the Full Bench in Awadesh Narayan Komal Singh v. Adarsh Vidya Mandir Trust6. The Petition shall stand allowed to the aforesaid extent. In the circumstances of the case, there shall be no order as to costs. ***** 6 2004(1) Mh. L. J.676.