1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 525 OF 2010 1. Diocesan Society of Education, a Society registered under the Societies Registration Act,1860 through its Managing Committee, Paco Patriarcal, P. B. 2216, Altinho, Panaji, Goa 403 001. 2. Rosary Higher Secondary School, through its Managing Committee Navelim, Salcete, Goa .. Petitioners. V e r s u s 1. Administrative Tribunal Panaji, Goa. 2. Mr. Constancio Fernandes, resident of Dandea Vaddo, Chinchinim, Salcete, Goa- 403715. 3. Directorate of Education, To the Director, Government of Goa, having office at St. Inez, Panaji, Goa. .. Respondents Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Braganza, Advocate for the petitioners. Mr. V. R. Tamba, Advocate for respondent no.2. Mr. S. Vahidulla, Additional Government Advocate for respondent no.3. CORAM : A. P. LAVANDE, J. Reserved on : 8 th October, 2010. Pronounced on : 22 nd October, 2010. JUDGMENT : Heard learned Counsel for the parties. Rule. By 2 consent, heard forthwith. 2. By this petition, the petitioners challenge the judgment and order dated 11th May, 2010 passed by the Administrative Tribunal in Education Appeal no.10 of 2004 by which the Tribunal has allowed the appeal preferred by respondent no.2 against the order dated 31st December, 2003 by which the services of respondent no.2 as a Lower Division Clerk in Rosary High School, Navelim were terminated. 3. Briefly, the facts leading to filing of the present petition are as under : According to the petitioners, respondent no.2, who was serving as a clerk in petitioner no. 2 - School remained absent from 24th September, 1998. A show cause notice dated 21st October, 1998 was sent to respondent no.2. By his reply dated 25th November, 1998, he claimed that from 21st September, 1998, he was prevented from signing muster roll and instructed not to do any work till the enquiry was completed. According to respondent no.2, he was not permitted to discharge his duties although he attended the office. Thereafter, preliminary enquiry was conducted and by communication dated 15th April, 1999, respondent no.2 was 3 called upon to show cause as to why disciplinary action should not be taken against him for abstaining from duties. Respondent no.2 did not give any reply. Thereafter, a show cause notice dated 15th July, 1999 was sent to him. Thereafter, enquiry was initiated against him. Notice of enquiry was sent to him, which according to the petitioners was returned unserved. Hence, it was published in 'Gomantak Times' dated 20th June, 2003. Thereafter, Enquiry Officer was appointed, who submitted his report dated 30th June, 2003. A copy of the report was submitted to respondent no.2. By letter dated 28th July, 2003, respondent no.2 sought documents which were forwarded to him on 28th August, 2003. Thereafter, on 9th September, 2003, respondent no.2 filed reply. The matter was placed before the Disciplinary Committee and the meeting was held on 15th October, 2003. By communication dated 4th December, 2003, petitioner no.1 sought approval of Director of Education for termination of respondent no.2, which was granted by respondent no.3 vide letter dated 29th December, 2003. Thereafter, services of respondent no.2 were terminated by order dated 31st December, 2003 with effect from 1st January, 2004. Respondent no.1 allowed the appeal filed by respondent no.2 primarily on the ground that there was no enquiry as contemplated under the Goa School Education Rules, 1986 4 ('The Rules' for short) and no opportunity was given to respondent no.2 to defend himself. The Tribunal held that the procedure adopted by the petitioners was not as per the Rules. Consequently, respondent no.1 allowed the appeal and directed the petitioners to reinstate respondent no.2 in service with all benefits from the period 1st January, 2004. 4. Mr. Coelho Pereira, learned Senior Counsel appearing on behalf of the petitioners, in support of the petition, urged the following grounds : (i) The enquiry held against respondent no.2 was in accordance with the Rules. Therefore, the finding of the Tribunal that the enquiry was not proper and in breach of principles of natural justice is patently unsustainable in law. (ii) Respondent no.2 could not have filed appeal directly to the Tribunal without approaching the Director in terms of Rule 97(2) of the Rules. (iii) The Tribunal having found that no proper enquiry was held against respondent no.2 ought to have granted liberty to the petitioners to hold fresh enquiry, if they so desire. 5 In support of his submissions, Mr. Pereira, relied upon the following judgments : (i) State of Punjab and others Vs. Chander Mohan; (2005) 13 SCC 81. (ii) Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh and others; AIR 1962 SCC 1334. (iii) Punjab National Bank and Ors. Vs. K. K. Verma; JT 2010 (9) SC 610. 5. Per contra, Mr. Tamba, learned Counsel for respondent no.2 submitted that the finding recorded by the Tribunal that the enquiry was not proper is in accordance with law. He further submitted that the appeal filed by respondent no.2 was maintainable in terms of Section 22 of the Act and under Rule 97(3) of the Rules. Moreover, the Director before granting permission for termination of services, did not give an opportunity of bearing heard to respondent no.2. According to Mr. Tamba, the Director ought to have given an opportunity of being heard to respondent no.2 before granting permission to petitioners to terminate the services of respondent no.2. He further submitted that the petitioners neither sought liberty to hold fresh enquiry before the Tribunal nor in the petition filed before this Court and, therefore, they are not entitled to urge now that liberty 6 be granted to them to hold enquiry. In support of his submissions, Mr. Tamba relied upon the following judgments : (i) Roop Singh Negi Vs,. Punjab National Bank and Others; (2009)2 SCC 570. (ii) Jasbir Singh Vs. Punjab and Sind Bank and Others; (2007)1 SCC 566. (iii) Bachahan Devi and another vs. Nagar Nigam, Gorakhpur and another; (2008)12 SCC 372. 6. Mr. Vahidulla, learned Additional Government Advocate for respondent no.3 supported the impugned judgment and order. 7. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 8. The first question which arises for consideration is whether the enquiry held against respondent no.2 was in accordance with the Rules. Rule 97, which prescribes the procedure for imposing major penalties reads thus : "97. Procedure for imposing major penalty.- “(1) The procedure for imposing penalties specified in rule 94(1)(b), shall be as applicable to the Government 7 employees of the corresponding status : Provided that notwithstanding anything contained in the rules applicable to Government employees of corresponding status, the enquiry into such charges as are not admitted by the employee shall be, made by an Inquiry Officer appointed for the purpose by the Disciplinary Authority.”; (2) No order with regard to the imposition of a major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Director: “Provided that the Director of Education may, if found necessary, hear both the parties concerned, before granting/ refusing his approval: Provided further that where any of the major penalties has been imposed on any employee in violation of the provisions of the Act or the rules made thereunder, and where the same has been brought to the notice of the Director of Education shall revoke the penalty imposed after giving reasonable opportunity to the Disciplinary Authority of showing case against the proposed action and order that the employee be reinstated in service/and/or be restored in all respects, to his original position prior to the imposition of such penalty.” (3) Any employee of a recognised private school who is aggrieved by any order imposing on him the penalty of compulsory retirement or any major penalty may prefer an appeal to the Tribunal. 9. From bare perusal of Rule 97, it is clear that if the management proposes to impose major penalty on an 8 employee, the management has to follow rules applicable to government employees of the corresponding status. Therefore, it is clear that the petitioners were bound to issue chargesheet to respondent no.2 with a statement of imputation of charges in accordance with Central Civil Services (Classification, Control and Appeal) Rules, 1965, which admittedly has not been done by the petitioners. On this ground alone the purported enquiry held by the petitioners against respondent no.2 stands vitiated. Therefore, in my opinion, the Tribunal was justified in holding that the enquiry against respondent no.2 was not held in accordance with the Rules and, therefore, termination of respondent no.2 was patently illegal. 10. The next submission made by Mr. Coelho Pereira is that respondent no.2 ought to have approached the Director before filing appeal to the Tribunal against the order of termination. In terms of Section 22(1)(e) of the Goa School Education Act, 1984 ('The Act' for short), the appeal lies to the Tribunal from an order dismissing an employee. Therefore, the statute itself provides remedy of appeal against the order of termination. No doubt, Rule 97(2) permits an employee against whom major penalty has been imposed in violation of the provisions of the Act or the Rules 9 made therein to bring the same to the notice of the Director and the Director is entitled to revoke the penalty after giving a reasonable opportunity to Disciplinary Committee of showing cause against the proposed action and order that the employee be reinstated in service. Since Section 22(1)(e) gives a statutory right to an employee, proviso (2) to Rule 97 of the Rules, which enables the employee to bring to the notice of the Director that his termination has been in violation of the Rules, would not make the appeal before the Tribunal incompetent. Moreover, in the present case, admittedly, the Director did not give an opportunity of being heard to respondent no.2. No doubt, Proviso (2) to Rule 97 of the Rules stipulates that the Director of Education may, if found necessary, hear both the parties concerned before granting/ refusing approval. It is not necessary for me to decide the issue as to whether the word 'may' in the said proviso has to be read as 'shall' since in my opinion, the termination of respondent no.2 was patently illegal since enquiry against respondent no.2 was not held in accordance with the Rules. In my considered opinion, merely because respondent no.2 did not approach the Director against the order of termination passed by the petitioners, the appeal filed by respondent no.2 before the Tribunal cannot be said to not maintainable in law. Therefore, I do not find any merit in 10 the second submission of Mr. Coelho Pereira. 11. The next ground urged by Mr. Pereira, is that liberty be given to the petitioners to hold fresh enquiry since the enquiry held was not in accordance with the Rules. 12. In the case of Chander Mohan (supra) relied upon by Mr. Pereira, the Apex Court held that if order of demotion passed pursuant to departmental enquiry, was set aside on the ground that demotion order was passed by an incompetent authority, fresh departmental enquiry by the competent authority was competent. The ratio of this judgment is of no help to the petitioners in as much as in the present case, the enquiry was not by incompetent authority, but the enquiry was not in accordance with the Rules. 13. In the case of Devendra Pratap Narain Rai Sharma (supra), the Apex Court held that after an order in an enquiry against a public servant imposing a penalty is quashed by a Civil Court, a further proceeding can be commenced against him, if in the proceeding in which the order quashing enquiry was passed, the merits of the charge against the public servant concerned, were never investigated. The Apex Court further held that where the 11 High Court decreed the suit of the public servant on the ground that the procedure for imposing penalty was irregular, such a decision cannot prevent the State from commencing another enquiry in respect of the same subject matter consistently with the provisions of Articles 310 and 311 of the Constitution of India. 14. In the case of Punjab National Bank Vs. K. K. Verma(supra) relied upon by Mr. Pereira, the Apex Court dealt with the aspect as to what would be the effect when enquiry report and orders of the Disciplinary Authorities were not available with the order of removal. The Apex Court dealt with the aspect as to whether non-supply of enquiry report had caused prejudice to the respondent. The ratio of this judgment also would not advance the case of the petitioners. 15. In the case of Jasbir Singh (supra), the Apex Court set aside the impugned judgment and the appellant was reinstated with back wages. The Apex Court found that the appellant in the said case was treated very unfairly and unreasonably of criminal case casted upon him. 16. In the case of Roop Singh Negi (supra), the Apex 12 Court held that in the departmental enquiry, the Evidence Act, 1872 is not applicable, but the enquiry has to be conducted according to the principles of natural justice. The Apex Court held that the appellant, who was a Peon in the respondent Bank, was dismissed from services without proper enquiry and was ordered to be reinstated with full back wages. In the said case, the Apex Court held that the report of Inquiry Officer was based on surmises and conjectures and as such, the same could not have been sustained. The ratio of this judgment is also not applicable in the facts of the present case. 17. In the case of Bachahan Devi (supra), the Apex Court held that mere use of words 'may' or 'shall' is not conclusive and whether a particular provision of a statute, which, on the face of it, appears mandatory or directory, cannot be resolved by laying down any general rule. To find out legislative intent, the Court must examine the scheme of the Act. 18. I do not deem it necessary to refer to in detail the judgment in the case of Bachahan Devi (supra) since I have already held that it is not necessary for me to decide whether the use of word 'may' in proviso (2) of Rule 97 of the Rules 13 has to be construed as 'shall'. It is not necessary for me to decide whether the word 'may' appearing in proviso (2) to rule 97 of the Rules should be read as 'shall'. 19. No doubt, the petitioners have not contended before the Tribunal that in the event the termination of respondent no.2 was found to be not in accordance with the Rules, liberty be given to them to hold fresh enquiry nor such a ground has been specifically urged in the petition, but the petitioners urged the said ground in support of the petition and respondents, more particularly respondent no.2 has been heard in the matter. In my opinion, the ratio laid down in the case of Devendra Pratap Narain Rai Sharma (supra) though not directly applicable in the present case, advances the case of the petitioners. In the said case, the Apex Court held that where the High Court decreed the suit of a public servant on the ground that procedure of imposing penalty was irregular, such a decision cannot prevent the State from commencing another enquiry in accordance with the provisions of Constitution. In the present case, admittedly, no enquiry as contemplated under the Rules was held against respondent no.2 before terminating his services. This being the position, in my considered opinion, interest of justice would be served by giving liberty to the petitioners to hold fresh enquiry 14 against respondent no.2, in accordance with the Rules, if they so choose. 20. I have already held that the impugned judgment and order passed by respondent no.1 holding the termination of respondent 2 illegal, cannot be faulted. Therefore, the order passed by respondent no.1 holding that the termination of respondent no.2 was illegal and consequently, granting reinstatement with all benefits from the period 1st January, 2004 is upheld. However, liberty is granted to the petitioners to hold fresh enquiry in accordance with the Rules, if they so choose. 21. Writ Petition stands disposed of accordingly with no order as to costs. A. P. LAVANDE, J. SMA