1 WP/10348/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10348/2010 SHRI VINDHYASINI SHIKSHAN PRASARAK MANDAL AND ANR V/S NANDKUMAR HARI PATIL AND ANR ... Shri S.S.Patil, Advocate for petitioner Shri V.D.Sapkal, Advocate for respondent No.1. ... CORAM : B.P. DHARMADHIKARI,J. Dated : April 29, 2011 PER COURT :- 1. Both lawyers inform that Writ Petition No.2594 of 2001 is not connected with this petition. Accordingly that Writ Petition is separated. 2. Shri Patil, learned counsel for the petitioner / management has raised two contentions in the alternative. First question of assistance of lawyer to employee (respondent) is already concluded because of the orders of this Court in Writ Petition No.3781 of 2007 dated 29.10.2007. The School Tribunal, therefore, could not have reopened that issue and held that denial of lawyer to respondent was in breach of principles of natural justice. In the alternative, without prejudice, learned counsel by placing reliance upon the judgment of this Court in the case of President/Secretary, Pioneer Education Trust Vs. Janardan Mitharam Jangale [2008 (3) ALL MR 406] contends that the School Tribunal ought to have permitted enquiry to proceed from the stage of defect by 2 WP/10348/2010 permitting the respondent to engage a lawyer to cross examine the witnesses of the management. 3. About the payment of subsistence allowance, a communication offering amount of Rs.25,757/- vide cheque No.0704990 dated 5.2.2008 for the period from 19.11.2007 to 4.2.2008 is produced before this Court. the contention is that thus the subsistence allowance as per the order of this Court dated 29.10.2007 has already been paid and the contempt for its non payment was accordingly disposed of. 4. Shri Sapkal, learned Advocate, on the other hand, points out that the President of the Trust, who is managing the affairs, is himself a lawyer and he has participated in the departmental enquiry on behalf of the management. The School Tribunal, after noticing this has found it necessary to permit the legal assistance to present respondent also. He points out that the judgment of this Court in the case of Punjaram Dharmaji Wogdarkar Vs. Presiding Officer [2007 (3) Mh.L.J. 627] has been replied upon. He further contends that initial suspension of respondent was on 28.7.2003 and subsistence allowance from that day was not paid. It has not been paid so far and only because of directions of this Court on 29.10.2007, subsistence allowance for four months has been paid. According to him unless and until the subsistence allowance is paid the enquiry cannot proceed further. Therefore, denial of lawyer to respondent and non payment of subsistence allowance are sufficient to 3 WP/10348/2010 vitiate the departmental enquiry and grant relief of reinstatement. He opposes any de novo enquiry by pointing out that the President of the institution has a grudge against the respondent and School Tribunal has noted it while finding unequal treatment to other employees allegedly involved in the same incidence. He, therefore, contends that in such situation, the liberty given by the School Tribunal to management to hold fresh enquiry is more than sufficient and it is not necessary for the management to proceed further with the old inquiry 5. The question about grant of legal assistance while conducting the departmental enquiry is concluded by the judgment delivered by me at Nagpur in the case of Punjaram (supra). In the impugned judgment dated 12.8.2010 the Presiding Officer, School Tribunal, Nasik has, in fact, relied upon the said judgment. Here, it is not in dispute that the President of the public trust/institution is an Advocate and School Tribunal has noted that the examination of the witnesses was conducted by him in his capacity as a convener of the Enquiry Committee. 6. Apparently order of this Court dated 29.10.2007 shows that this Court has not made any observation about the grant or refusal of legal assistance to the respondent. In the earlier order, the School Tribunal has found no substance in the submissions of present respondent but then the School Tribunal had allowed the appeal on 12.4.2007. The management was then directed to reinstate him. That order was questioned before this 4 WP/10348/2010 Court by the management. Thus the correctness or otherwise of the said finding was not required to be ascertained by this Court in Writ Petition No.3780 of 2007. In its order dated 29.10.2007, this Court has only directed the management to pay subsistence allowance in accordance with the provisions of law and has further observed that enquiry needs to be commenced from the stage of permitting respondent - teacher to cross examine the witnesses examined on behalf of the management. 7. After this judgment, the respondent moved a fresh application for engagement of lawyer and controversy was then examined by the School Tribunal in the light of the judgment of this Court in the case of Punjaram (supra). I see no jurisdictional error or perversity in it. When the management had assistance of a legally trained mind, the respondent also ought to have been permitted a lawyer to defend himself in the matter. As that has not been done, the finding that enquiry gets vitiated is not erroneous or perverse. 8. The contention that the management has any grudge against the respondent and because of that grudge or bias it has discriminated him in the matter need not be gone into at this stage. That bias can be again brought on record by respondent during the departmental enquiry. The facts coming on record then can be looked into by the enquiry committee and thereafter by School Tribunal, if occasion therefor arises. The charges are of consumption of liquor in the school premises and respondent was the Head Master. The other employees, who have been 5 WP/10348/2010 treated leniently have admitted their guilt. In this situation, I find that the management needs to be permitted to proceed further with the departmental enquiry from the stage at which defect crept in by permitting the respondent to engage a lawyer and to cross examine the witnesses examined by the management in the departmental enquiry. The course of action is laid down by the Honourable Supreme Court in the case of Pioneer Education Trust (supra) and as adopted by this Court in the case of Punjaram (supra), in the light of the Full Bench judgment of this Court in the case of Saindranth Jagannath Jawanjal Vs. Pratibha Shikshan Sanstha [2007 (4) ALL MR 281]. 9. The material produced before this Court clearly reveals that the respondent was paid subsistence allowance in lump sum even during pendency of enquiry as conducted after liberty given by this Court. It was not paid regularly every month. Such payment of subsistence allowance is not in accordance with the law. The respondent is entitled to have the substance allowance every month so as to enable him to participate effectively in the departmental enquiry. It is apparent that he has not been paid subsistence allowance after 4.2.2008 because on that day his earlier dismissal was upheld. 10.(A) Hence, the petitioner is directed to pay the respondent arrears of subsistence allowance from 4.2.2008 till 30.4.2008 by 31.5.2011 and to pay him the regular substance allowance from 1.5.2011 onwards every month. The subsistence allowance for the period from 1.5.2011 till 6 WP/10348/2010 31.5.2011 shall be paid to him by 7.6.2011 and thereafter, every month in the same fashion regularly during pendency of the departmental enquiry. After the arrears of subsistence allowance are paid, the management shall be free to hold the departmental enquiry from the stage of defence and complete it accordingly in accordance with law. (B) During enquiry respondent shall be permitted to appear / engage services of lawyer of his choice for cross examination and for defending himself. (C) The question of non payment of subsistence allowance form 28.7.2003 till 19.11.2007 and it's impact is kept open for consideration at an appropriate stage in the matter. (D) If the arrears of subsistence allowance as mentioned above are not paid, the impugned judgment of the School Tribunal dated 12.8.2010 shall revive. (E) Subject to this, the impugned order dated 26.8.2010 is quashed and set aside. 11. Writ Petition is allowed in above terms. No order as to costs. ( B.P. DHARMADHIKARI, J.) ... akl