1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.568 of 2008 The Karmaveer Bhausaheb Hiray Shikshan Sanstha & ors. Petitioners Vs. Smt. Sumati Ashok Nikam & ors. Respondents Mr.G.S.Godbole with i/b. Mr.V.V.Purwant for petitioners. Mr.U.V.Nikam, Petitioner no.3 in person. Mr.S.S.Pakale for respondent no.1. Mr.A.P.Vanarase, AGP for Resp.nos.2 & 3. CORAM: B.H.MARLAPALLE, J. Reserved on : February 5, 2008. Pronounced on: February 18, 2008. ORDER: 1. This petition filed under Article 227 of the Constitution impugns the judgment and order rendered by the School Tribunal at Nashik on 20/12/2007 thereby allowing Appeal No.6 of 2005 filed by the respondent no.1 who was the Head Mistress of Trimbak Rakhmaji High School and Junior College, Dabhadi, Taluka Malegaon, Dist. Nashik. By the said order the School Tribunal was pleased to set aside the order of termination dated 18/4/2005 and to direct the reinstatement of the appellant on the post of Head Mistress with all consequential benefits 2 including backwages and continuity of service. 2. The petitioner no.1 is the Society which runs the said secondary and higher secondary school. The appellant was appointed as an Assistant Teacher on 10/6/1974 as she possessed the qualifications of B.A., B.Ed and she came to be promoted to the post of Head Mistress on 1/7/2004. The said appointment was approved by the respondent no.3. However, she came to be suspended on 16/12/2004 and on 21/12/2004 she was served with a statement of allegations. She replied to the same on 8/1/2005 and consequently on 29/1/2005 she was issued the charge-sheet. The Enquiry Committee was constituted. Thirty three witnesses were allegedly examined and the Enquiry Committee purportedly submitted its report holding the appellant guilty. The petitioners accepted the said report and issued an order of dismissal dated 18/4/2005, which came to be challenged in Appeal No.6 of 2005. 3. The petitioners had filed Written Statement before the School Tribunal and opposed the appeal. After taking into consideration the averments of both the parties as well as the enquiry proceedings the 3 Tribunal by the impugned judgment and order held that the mandatory requirements of Rule 37(4) and 37(6) of the MEPS Rules were violated and consequently the termination order dated 18/4/2005 was liable to be set aside. 4. Initially Mr.Godbole advanced arguments on behalf of the petitioners and subsequently Mr.Umesh Nikam, Secretary of the petitioner no.1 - Society advanced his arguments as party in person. Copies of the enquiry proceedings were also placed before me. Rule 37(4) and 37(6) of the MEPS Rules read as under: "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. 37(6) On receipt of such further explanation or if no explanation is offered within the aforesaid time the Inquiry Committee shall 4 complete the inquiry and communicate its findings on the charges against the employee and its decision on the basis of these findings to the Management for specific action to be taken against the employee or the Head, as the case may be, within ten days after the date fixed for receipt of further explanation. It shall also forward a copy of the same by registered post acknowledgement due to the employee or the Head, as the case may be. A copy of the findings and decision shall also be endorsed to the Education Officer or the Deputy Director, as the case may be, by registered post acknowledgement due. Thereafter, the decision of the Inquiry Committee shall be implemented by the Management which shall issue necessary orders within seven days from the date of receipt of decision of the Inquiry Committee, by registered post acknowledgement due. The Management shall also endorse a copy of its order to the Education officer or the Deputy Director as the case may be." 5. Mr.Nikam has taken me through the enquiry 5 proceedings as well as findings of the enquiry committee and the subsequent correspondence between the parties till the order of dismissal dated 18/4/2005. Mr.Nikam, the party in person, is himself a learned member of the Bar and having regards to the respective steps taken by the petitioners on closing of the enquiry proceedings till the order of dismissal, he fairly conceded that the findings recorded by the School Tribunal regarding the violation of Rule 37(4) and 37(6) of the MEPS Rules could not be termed as erroneous or perverse. At the same time he emphasised that the charge-sheet dated 29/1/2005 served on the appellant levels as many as 37 charges and most of them are serious in nature. Mr.Nikam, therefore, urged that the School Tribunal, though set aside the dismissal order, it ought to have allowed the petitioners to continue with the enquiry proceedings from the stage it was found to be defective i.e. from the stage of compliance of Rule 37(4) of the MEPS Rules onwards and in support of these submissions he has relied upon the decision of the Supreme Court in the case of Vidya Vikas Mandal & anr. Vs. Education Officer and anr. [2007 (3) [2007 (3) [2007 (3) Mh.L.J. Mh.L.J. Mh.L.J. 801] 801] 801]. 6 6. Mr.Pakale, the learned counsel for the respondent - appellant, on the other hand, while supporting the impugned order stated on instructions that the appellant is not shy of facing the enquiry so long as the enquiry committee is constituted strictly in compliance with Rule 36, the procedure of enquiry is adopted in conformity with the requirements of Rule 37 of the Rules and the appellant is given full opportunity to defend herself in keeping with the principles of natural justice, including cross-examination of all the witnesses by her representative. From the enquiry proceedings Mr.Pakale pointed out that in the earlier enquiry conducted, the employee was not allowed to cross-examine the witnesses and for some reason or the other the enquiry proceedings were continued despite the fact that her representative had intimated in writing about his inconvenience and requested for adjournment. Mr.Pakale also pointed out that the order of suspension dated 16/12/2004 was issued without the permission of the respondent no.3 and the said respondent had submitted before the School Tribunal in writing that the permission for suspension was declined as per the order dated 29/12/2004. 7 7. So far as the issue of suspension is concerned, merely because it was not preceded by a permission from the respondent no.3, it would not be rendered illegal and the management will be required to pay full salary during the period of such suspension and in addition the said salary will have to be borne by the Society, as has been held by the Full Bench of this Court in the case of Adarsh Vidya Mandir Trust & anr. Vs. Awadesh Narayan Komal Singh [2004 [2004 [2004 (4) Mh.L.J. 173] (4) Mh.L.J. 173] (4) Mh.L.J. 173]. 8. Having gone through the enquiry proceedings, I have no doubt in my mind that while constituting the enquiry committee and while conducting the enquiry, the petitioners had shown no respect to the legal requirements and I hasten to add that the petitioners acted in utter disregard to the requirements of Rules 36 and 37 of the Rules as well as the principles of natural justice. As per Rule 36(2)(b) the Inquiry Committee must consist of three members i.e. (i) one member who shall be the President of the Management, (ii) one member to be nominated by the Head from amongst the employees of any private school and (iii) one member chosen by the President from the panel of 8 Head Masters on whom State / National Award has been conferred. But in the instant case the Enquiry Committee constituted was of four members viz. (i) Shri Abhiman Nikam, Chairman of petitioner no.1, (ii) Shri R.R.Sonawane, Head Master, (iii) Shri P.B. Hingmire, a nominee of the appellant and (iv) Shri Umesh Nikam, Secretary of petitioner no.1 and convener of the Enquiry Committee and the so called convener has fully participated in the enquiry proceedings. Shri R.R.Sonawane forwarded his report vide letter dated 13/4/2005 and Mr.Abhiman Nikam submitted his separate report but its date is not known. When the Enquiry Committee submits a report, the same must be signed by all the members in case there is uniformity of opinion but if the verdict of the Enquiry Committee is split, there will be minority and majority findings. The Rules do not accept that if the two committee members agree to record the same findings, but the findings are submitted separately. The judgment of the Supreme Court in the case of Vidya Vikas Mandal (Supra) and as relied upon by the petitioners supports this view and, therefore, the following observations from the said judgment are relied upon: 9 "8. As rightly pointed out by the learned counsel for the appellants, Rule 37(6), which is mandatory in nature, has not been strictly complied with. The Inquiry Committee comprising of three members, as already noticed, only one member nominated by the Management has submitted his Inquiry report within the time stipulated as per Rule 37(6) and admittedly, the other two members nominated by the employee and an independent member have not submitted their report within the time prescribed under Rule 37(6). However, the learned Judges of the Division Bench, though noticed that the two members out of three found the employee not guilty, failed to appreciate that the said findings by the two members of the committee were submitted after the expiry of the period prescribed under Rule 37(6). In our opinion, the report submitted by individual members is also not in accordance with the Rules. When the Committee of three members are appointed to inquire into a particular matter, all the three should submit their combined report whether consenting or otherwise. Since the report is 10 not in accordance with the mandatory provisions, the Tribunal and the learned Single Judge and also the Division Bench of the High Court have committed a serious error in accepting the said report and acted on it and thereby ordering the reinstatement with backwages. Since the reinstatement and backwages now ordered are quite contrary to the mandatory provisions of Rule 37(6), we have no hesitation in setting aside the order passed by the Tribunal, and learned Single Judge and also of the Division Bench of the High Court. In addition, we also set aside the order passed by the Management based on the report submitted by the single member of the Committee, which is also quite contrary to the Rules." 9. In addition, from the proceedings it is clear that the grievance raised by Mr.Pakale has merits. The appellant was not allowed to cross-examine the witnesses and on the spacious ground that her representative could not be allowed to cross-examine the witnesses examined by the management in support of the charges. The inquiry proceedings have been 11 continued in the absence of the representative of the appellant. There is a gross violation of the principles of natural justice in conducting the said enquiry and, therefore, undoubtedly the enquiry is vitiated. But the right of the management to conduct a de novo enquiry cannot be taken away in the facts of this case and the law laid down by the Supreme Court in the case of Vidya Vikas Mandal (Supra) also supports the contentions of the management that it must be allowed to conduct a de novo enquiry into the charges levelled against the appellant. A Full Bench of this Court in the case of Awdhesh Narayan (Supra) has also upheld the right of the management to conduct a de novo enquiry, if the enquiry earlier conducted was found to be vitiated. In the case of State of Punjab & ors. Vs. Dr. Harbhajan Singh Greasy [(1996) 9 SCC 322] [(1996) 9 SCC 322] [(1996) 9 SCC 322] the Supreme Court stated, "3. ...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 12 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...." 10. There is one more facet which requires to be considered while allowing the petitioners to proceed with a de novo enquiry by reconstituting the Enquiry Committee so as to ensure that it will have only three members including the representative of the appellant. Petitioner no.3 - Shri Umesh Vasantrao Nikam cannot be associated in the reconstituted Enquiry Committee in any capacity. Firstly the scheme of Rule 36(2)(b) does not permit the Secretary of the Society to be one of the members of the Enquiry Committee and the Society has to be represented on the Enquiry Committee only by the President / Chairman. Secondly the appellant has already registered an FIR against the said Shri Umesh Nikam, his anticipatory bail application was rejected by the Sessions Court and subsequently the same was allowed by this Court. It would be, therefore, in the interest of justice and fair play that the said Shri Umesh Nikam is kept away from the Enquiry 13 Committee and he shall have no association whatsoever with the newly constituted Enquiry Committee and the enquiry proceedings. 11. Hence there is no case made out to interfere with the impugned order passed by the School Tribunal under the supervisory jurisdiction of this Court under Article 227 of the Constitution, save and except to clarify that the petitioners are at liberty to conduct a de novo enquiry into the charges levelled against the appellant vide the charge-sheet dated 29/1/2005. In case the petitioner - society decides to conduct a de novo enquiry and such decision is taken within two weeks from today, the enquiry committee shall be reconstituted. The name of the Awardee Teacher shall be communicated by the petitioner no.2 to the appellant within the said period of two weeks and the appellant shall intimate the name of her representative within a period of one week therefrom. The Enquiry Committee shall be reconstituted before 10th March 2008. The right of the Society to conduct a de novo enquiry shall be subject to the Society paying to the appellant her full salary with effect from the date of suspension i.e. 16/12/2004 by adjusting the amount of 14 suspension / subsistence allowance paid, if any, within a period of two weeks and at the same time if the management decides to suspend the appellant, she shall be entitled for payment of full salary during the period of suspension which shall not be more than four months and during the said period of four months, the de novo enquiry shall be completed and the appellant shall be communicated the final decision arising from the Enquiry Committee findings. . The petition is disposed off accordingly. (B.H.MARLAPALLE,J.) February February February 18, 2008. 18, 2008. 18, 2008. . Mr.Nikam, the party in person makes an oral application for stay to the order, operative part of which was pronounced in the Court today and prays for 15 suspension of this order for a period of two weeks from today. . The oral application is hereby rejected. (B.H.MARLAPALLE,J.)