1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2745 OF 1996 Santosh Bhila Patil, age: 43 years, Occ: Nil, R/o Arvi, Tq. & Dist.Dhule. Petitioner Versus 1 New Education Society, Arvi, Tq. & Dist. Dhule. 2 Head Master, New Education Society’s V.N.Patil Madhyamik Vidyalaya, Chaugaon, Tq. & Dist.Dhule. Respondents Mr.S.P.Brahme, advocate for the petitioner. Mr.A.B.Dhongade, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 4 th April, 2009. JUDGMENT: 1 Petitioner is raising exception to the order dated 26.03.1996, passed in Appeal No.33/1995 by the Presiding Officer, School Tribunal, Nashik, thereby dismissing his appeal and confirming the order passed by Management in respect 2 of termination of services of the petitioner, who was serving as an Assistant Teacher. 2 Petitioner was employed with Respondent No.1 since 01.08.1978 as an Assistant Teacher. Certain charges were levelled against him and on completion of inquiry, the Management took a decision to terminate services of the petitioner and accordingly such an order was issued on 01.05.1995. 3 According to the petitioner, in the year 1993, he was posted at a school functioning at village Arvi. The Chairman of Respondent No.1, one Eknath Punjaram Patil, is related to petitioner. He is petitioner’s wife’s step brother. According to petitioner, he was directed by the Chairman to perform certain illegal functions, which petitioner had refused to perform. On that count, his relations with the office bearers were strained. Petitioner came to be transferred to village Chaugaon in view of the order issued on 05.06.1993. It is his contention that there was a sort of agitation against office bearers of Respondent No.1 at village Arvi on account of allegations in respect of corruption by the persons in charge of 3 the Management. A news item was published in that connection in local news paper on 08.06.1993. The Chairman had an apprehension that publication of news item and agitation by the villagers at village Arvi was at the instance of petitioner. It is further contention of the petitioner that he was assaulted on 03.07.1993 by certain persons including the Chairman of the Institution. A complaint in that behalf was lodged with the police station, which was registered as Crime No.237/1993 for an offence punishable under Sections 292, 323, 504 read with Section 34 of the Indian Penal Code. All these instances led to constitution of an inquiry committee for probing into the charges against petitioner. The inquiry committee was constituted by the Management on 21.07.1994. Eknath Punjaram Patil, who was then Chairman, was appointed as nominee of the Management on the inquiry committee, whereas one K.G.Patil was appointed by the Chief Executive Officer from the category of State awardee teachers. Petitioner had appointed one Shri Suryawanshi as his representative. First meeting of the inquiry committee was stated to have been held on 25.05,1994, whereas charge sheet was served on the petitioner only on 31.10.1994. According to the petitioner, a farce of inquiry was created, 4 which ultimately led to issuance of order of termination. 4 The charges levelled against petitioner can be summarised as below: i. The petitioner remained absent since 05.07.1993 without permission. ii. No answer or explanation was given to the notice dated 28.07.1993 sent by Respondent No.2. This act of petitioner was reckless and improper. iii. No explanation was given to the notice dated 14.08.1993 sent by Respondent No.2. The act of petitioner was illegal and against the discipline. iv. The notice reply or explanation given vide letter dated 02.09.1993 by the petitioner was defamatory and illegal. v. The behaviour of the petitioner was immoral. He was addicted to liquor and negligent in his duties. vi. The reply dated 12.01.1994, sent by the petitioner to the letter dated 01.11.1995 was insulting and improper. vii. The petitioner remained absent to the flag hoisting ceremonies. His reply or explanation in this regard was false and inconsistent. 5 The petitioner tendered his written explanation on 5 21.11.1994 to the charges framed against him and denied all the allegations. Petitioner has also raised objection in respect of constitution of inquiry committee and the procedure in respect of conduct of inquiry. Apart from denying the allegations levelled against him, it is his contention that the inquiry is vitiated on account of non observance of procedural mandate contained in the Rules. Petitioner has also made a grievance that the proceedings of the meeting of inquiry committee and the report was not served on him as contemplated under Rule 37(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and essential documents were supplied to the petitioner only after issuance of order of termination on 02.05.1995. Petitioner contends that the inquiry is vitiated on account of inclusion of Eknath Punjaram Patil, who was Chairman of the Institution, in the inquiry Committee. There was a criminal case registered against him and he definitely had bias against the petitioner. According to the petitioner, the Chairman was instrumental in initiating false inquiry against him. It is also contention of the petitioner that apart from bias attitude of members of inquiry committee, the principles of natural justice have not been adhered to while holding the inquiry. On all these counts, it is 6 contended that the whole inquiry as well as resultant order of termination is vitiated and is liable to be quashed. 6 Respondents have supported the order passed by the Management as well as order passed by the Tribunal in the appeal tendered by the petitioner. The allegations in respect of bias levelled against the Chairman of the Institution and one of the members of the inquiry committee have been denied by the respondents. According to the Respondents, petitioner was given an opportunity to defend, which he has not availed. There is no violation of principles of natural justice. Constitution of the inquiry committee is in accordance with Rule 36 of the Rules and no fault can be found in that regard. It is, therefore, prayed to dismiss the petition and uphold the action taken by Respondents. 7 That, so far as constitution of inquiry committee is concerned, same is required to be constituted in accordance with Rule 36 of the Rules. Rule 36 provides that if an employee is allegedly found to be guilty of any of the grounds specified in sub rule (5) of Rule 28 and the Management decides to hold an inquiry, it shall do so through a properly constituted 7 inquiry committee. Sub rule (5) of Rule 28 provides that the employee is liable to be punished on the grounds such as: (a) misconduct; (b) moral turpitude; (c) willful and persistent negligence of duties; & (d) incompetence. 8 All these categories, referred to above, have been defined under sub rule (5) of Rule 28. If the Management proposes to hold inquiry in respect of allegations contained on any of the grounds specified in sub rule (5) of Rule 28, the Management can do so by observing the procedure prescribed under Rule 36. So far as constitution of inquiry committee is concerned, it shall consist of three members out of which one member shall be from amongst members of the Management to be nominated by 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 decision of the Management. One member shall have to be nominated by the employee from amongst the employees of any private school; and one member is required to be chosen 8 by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred. In the instant case, it is contended by the employee that the constitution of inquiry committee is vitiated on account of inclusion of Eknath Punjaram Patil, who was the Chairman of the Institution, against whom a criminal case was instituted at the instance of petitioner. 9 The contention raised by petitioner in respect of bias appears to have been substantiated if one considers the course of inquiry adopted by the Committee. It is not denied that the petitioner has lodged a complaint against the Chairman Ekanth Patil with Police Station on 03.07.1993 prior to institution of inquiry against him. Eknath Patil, therefore, definitely has reason to initiate action against the petitioner. The apprehension of the petitioner in respect of bias against one of the members of the Committee i.e. Eknath Patil, who was Chairman of the Inquiry Committee, does appear to be reasonable. 10 If the allegations contained in the charge sheet are perused, those do not fall within sub rule (5) of Rule 28 of the 9 Rules, which call for a major penalty. One of the allegation is in respect of immoral conduct. The allegation levelled against petitioner is on account of his second marriage. It is to be noted that the Chairman of the Inquiry Committee Ekanath Patil is brother of petitioner’s first wife. Petitioner was prosecuted for offence punishable under Section 494 I.P.C. and he was acquitted from the charges levelled against him. The Chairman of the Committee Eknath Patil, being brother of first wife of petitioner, has a definite reason to initiate inquiry against the petitioner and further to hold him guilty. 11 It would be appropriate to consider legal objections raised by the petitioner in respect of conduct of inquiry by the Management. Rule 36 of the Rules provide that if the Management comes to a conclusion that the employee has committed any act specified in sub rule (5) of Rule 28, the Chief Executive Officer, authorised by the Management in this behalf, shall communicate to the employee by Registered Post Acknowledgment Due, the allegations and demand from him his written explanation within seven days from the receipt of statement of allegations. If the explanation tendered by the employee is found to be not satisfactory, same shall have 10 to be placed before the Management within fifteen days from the date of receipt of explanation and the Management shall take decision within fifteen days in respect of conduct of inquiry against the employee. In the instant matter, there is absolutely nothing on record to indicate that such a procedure has been followed. The petitioner was not at all called upon to tender his explanation in respect of charges. The procedure, as contemplated by Rule 36(1) and (2), therefore, has been followed in its breach. Rule 36 provides that the Management shall prepare a charge sheet containing specific charges and shall hand over together with statement of allegations and the explanation of employee to the convener of the inquiry committee and also forward copies thereof to the employee concerned by Registered Post Acknowledgment Due within seven days from the date on which the inquiry committee is deemed to have been constituted. In the instant matter, the inquiry committee is stated to have been constituted on 21.07.1994. The first meeting of the Committee was held on 25.09.1994, whereas, the charge sheet is served on the petitioner on 31.10.1994 only after conclusion of about five meetings of the Committee. It is contended by Respondents that copy of the charge sheet 11 was given to the representative of petitioner – B.R.Suryawanshi on 25.09.1994 itself. However, only after the petitioner made grievance in respect of failure to supply charge sheet to him, copy thereof was recovered from the possession of representative of petitioner and was tendered to him on 31.10.1994. It is the contention of Respondents that there is substantial compliance of provisions of the Rules. Rules 36 & 37 require that firstly before framing of charges, statement of allegations shall have to be served on the employee and after receiving his explanation, the Management is required to take a decision in respect of proceeding further against the employee and only thereafter the charge sheet is required to be served on the employee in accordance with Rule 37. The stages prior to preparation of charge sheet have not been followed in the instant matter nor the mandate of Rule 37 of supplying the copy of charge sheet to the petitioner, by Registered Post Acknowledgment Due within seven days from the date on which inquiry committee is deemed to have been constituted, is observed by the Respondents. Rule 37 mandates transmitting copy of charge sheet by Registered Post Acknowledgment Due to the employee concerned within seven days from the constitution of inquiry committee. 12 In the instant matter, the inquiry committee is constituted on 21.07.1994, whereas statement of allegations / charge sheet was not at all transmitted to the employee by Registered Post Acknowledgment Due. Same appears to have been served on petitioner on 31.10.1994 only after conducting five meetings of the inquiry committee. The whole procedure in respect of conducting inquiry has been breached in the instant matter. 12 Another objection, that has been raised by the petitioner is in respect of non observance of procedure as contemplated by sub rules (4) and (6) of Rule 37 of the Rules. It is obligatory on the part of convener of the inquiry committee to forward to the employee summary of proceedings and copies of statements of witnesses by Registered Post Acknowledgment Due within four days on completion of those steps and allow him time of seven days to offer his explanation. It is only after receipt of the explanation, inquiry committee is supposed to 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 within ten days from the date fixed for receipt of further explanation. In the instant 13 matter, in spite of requesting for copies of the proceedings of the meetings and copy of the inquiry report, same appears to have been furnished to the employee along with forwarding letter only on 02.05.1995, whereas decision to terminate services of the petitioner, is taken prior to supply of copies of the proceedings and inquiry report. The order of termination was issued on 01.05.1995, whereas, copies of proceedings of meeting and inquiry report were sent to the petitioner on 02.05.1995, that is a day after issuance of order of termination. The mandate of sub rules (4) and (6) has not been observed by the inquiry committee and as such, the whole inquiry is vitiated on that count. 13 Petitioner has placed on record proceedings of the meetings of inquiry committee. If the proceedings are perused, it does appear that no business is transacted in first eight meetings held on different dates. The first meeting of the inquiry committee was held on 25.09.1994 and several meetings were conducted from time to time. However, till conduct of 8 th meeting, no business is transacted and all the meetings appear to have been adjourned for one reason or the other. On perusal of the proceedings of 9 th and 10 th 14 meeting of the committee held on 10.02.1995 and 19.02.1995, it appears that representative of the petitioner B.R.Suryawanshi was not present for the meetings. In the absence of representative of the petitioner, business of the inquiry committee was transacted. However, except recording the allegations contained in the charge sheet, nothing has been recorded to support the allegations made against the petitioner. The proceedings of 10 th meeting is nothing but reproduction of statement of allegations against the petitioner. No evidence appears to have been produced on behalf of the Management nor any witness has been examined and recommendation has been made by the inquiry committee consisting of Chairman Eknath Punjaram Patil, against whom serious allegations are levelled by the petitioner, and another member of the inquiry committee, of terminating services of the petitioner. The explanation tendered by the petitioner has not at all been considered in the report. As stated earlier, the allegations themselves also do not fall within the category of sub rule (5) of Rule 28 of the Rules, which call for penalty of termination of services of the petitioner. 14 For the reasons stated above, I am convinced that 15 the inquiry committee has merely conducted a farce of inquiry. There are absolutely no logical reasons for drawing a conclusion against the petitioner. The Chairman of the inquiry committee and President of the Institution had a definite reason for holding against the petitioner, as a criminal case was lodged against him at the instance of petitioner. Moreover, it does appear from the record that there are allegations against the petitioner in respect of his marrying second time and considering close relationship of petitioner and Chairman, it is but natural for him to harbour a grudge against the petitioner. The Chairman of the inquiry committee Eknath Punjaram Patil is, as noted above, is brother of petitioner’s first wife. Taking into account all these aspects, I am of the opinion that action taken by the Management of terminating services of the petitioner is mala fide. The conduct of inquiry against the petitioner is also not in accordance with Rules 36 and 37 of the Rules. The Chairman of the Inquiry Committee definitely harboured bias against the petitioner for the reasons recorded above. The School Tribunal has not taken into account all these aspects and on recording fanciful reasons has dismissed the appeal presented by petitioner. It is surprising to note as to how the School Tribunal 16 came to the conclusion that there is no challenge / resistance to the allegations levelled against the employee before the inquiry committee. The Presiding Officer of the School Tribunal has not applied his mind to the record of the case and has proceeded to pass an order, which is not sustainable. 15 It is urged by the Respondents that on recording finding in respect of non observance of procedure by the inquiry committee, it would be appropriate to remit the matter back to the inquiry committee for conducting de novo inquiry. Reliance has been placed on the judgment in the matter of State of Punjab Vs. Dr. Harbhajan Singh Greasy, reported in 1996 (9) SCC 322. It is contended by the petitioner that this is not a fit case wherein de novo inquiry is warranted. It is pointed out that there is absolutely no material placed on record by the Management to substantiate allegations levelled against the petitioner. The initiation of inquiry at the instance of Eknath Punjaram Patil, who was then Chairman of the Committee, was with vengeance. Petitioner has served with the Respondents for about 17 years and during service career, there were absolutely no allegations levelled against the petitioner, which call for disciplinary inquiry. Looking to the 17 charges levelled against the petitioner, I am of the opinion that this is not a fit case to direct de novo inquiry. It is not necessary in each and every case, where it is found that there are breaches in conducting the inquiry, to direct de novo inquiry. However, issuance of such directions would depend upon facts of each case. Looking to the background of conspectus of facts enumerated above, I am of the considered view that this is not a fit case for directing a de novo inquiry. 16 Services of the petitioner have been terminated in view of the order passed on 01.05.1995 and since thereafter he is out of employment. It is contended by the petitioner that he was not gainfully employed during the intervening period and as such, while directing his reinstatement, it may be directed to the Management to pay him full back wages. It is to be noted that the petitioner is out of employment since 1995. Respondent-Management runs a school for imparting education to the students. The Management, obviously, was required to employ another teacher for performing functions of the petitioner as a teacher and was also required to pay him salary. Taking into consideration all these aspects, it would 18 serve ends of justice if Respondent-Institution is directed to pay 50% of the back wages. 17 For the reasons stated above, impugned order passed by the School Tribunal on 26.03.1994 in Appeal No. 33/1995 is quashed and set aside. Consequently, order of termination issued against the petitioner on 01.05.1995 by the Management, thereby terminating services of the petitioner, is quashed and set aside. Petitioner is directed to be reinstated in service with continuity. Considering facts and circumstances of the case, petitioner would be entitled to 50% of the back wages from the date of termination till his reinstatement in service. 18 Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp274596.odt