1 wp-1849-03.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1849 OF 2003 1 Y. P. Education Society through it’s ] President at Barshi Kanya Prashala ] near Shri Bhagwant Ground, Barshi, ] Pin 413 411 Dist. Solapur. ] 2 Smt. Shantabai Takalikar ] convenor, Inquiry Committee, ] S.D.J. Model High School, Barshi, ] Pin 413 411, Dist. Solapur. ] 3 Y. P. Education Society through it’s ] Secretary, Kanya Prashala ] near Shri Bhagwant Ground, Barshi, ] Pin 413 411 Dist. Solapur. ] 4 Shri Rajendra Ramling Shete ] S.D.J. Model High School, Near ] Bhagwant Ground, Barshi ] Pin 413 411, Dist. Solapur. ].. Petitioners V/s. 1 Shri Anant Rangnath Kulkarni ] age 58 years, ‘Anupam’, 729/3­6, ] Bungalow Chatrapati Colony, ] Kurduwadi Road, Barshi, Pin 413 411 ] 2 The Education Officer (Secondary) ] Zilla Parishad, Solapur, ] At Collector Office Compound, Solapur. ].. Respondents. 2 wp-1849-03.sxw Mr. Durgaprasad S. Sabnis, for Petitioners. Mr. S.S.Pande, for Respondent No.1. Mr. S.N. Bhosale, A.G.P. for Respondent No.2. CORAM : K.K.TATED, J. RESERVEDN ON : 7th APRIL, 2011 PRONOUNCED ON : 20th APRIL, 2011. JUDGMENT:­ 1 Heard learned counsel for the parties. 2 The Petitioners by this Petition under Articles 226 and 227 of the Constitution of India, are challenging the legality and correctness of the judgment and order dated 19th October, 2002 passed by the learned Presiding Officer, School Tribunal for Pune Region at Solapur in Appeal No.65 of 2002, whereby appeal preferred by he Respondent No.1, was allowed and the decision of enquiry committee vide its letter dated 20th May, 2002 and order of termination dated 24th May, 2002 , terminating the Respondent No.1’s service with effect from 31st May, 2002, was quashed and set aside and held that Respondent No.1 would be deemed to be in continuous service from the date of the said termination order onwards. 3 Petitioners are the original Respondent Management . The Petitioner No.1 – Y.P. Education Society is registered Public Trust under the Societies Registration Act, 1860. Petitioners are running two 3 wp-1849-03.sxw educational centers – namely (i) Primary School and (ii) National Child Labour Project Centres at Barsi. The Respondent No.1 is the original Applicant who filed appeal under section 9 of the Maharashtra Employees of Private Schools (conditions of service) Regulation Act, 1977, (herein after referred to as “the said Act”) being aggrieved by the termination of his service by award dated 24th May, 2002 passed by the Petitioner Management. 4 The facts in brief are as under:­ (i) The Respondent No.1 was appointed as Assistant Teacher in June, 1965. He was promoted as Head Master of S.D.J.Model High School, Barshi, maintained by the Petitioner. He was also working as a Secretary of the Society of Petitioner No.1 Management for about 17 years from 1983 to 2000. (ii) The Petitioner Management in its meeting dated 11th February, 2001 decided to hold enquiry against Respondent No.1 and show cause notice dated 21st February, 2001 was issued. The Respondent No.1 replied the said show cause notice by giving his explanation by letter dated 3rd March, 2001. The explanation given by Respondent No.1 was not accepted by the Petitioner Management and 4 wp-1849-03.sxw the Petitioner proceeded to constitute inquiry committee. Petitioner No.2 was appointed as convener and one Mr. M.M. Hiremath was appointed as independent member. At that time, Respondent No.1 nominated one Mr., T. S.Chavan as his nominee but the Petitioner rejected the name of Mr. T. S.Chavan. Thereafter, Respondent No.1 suggested Mr. R.V .Deshmukh and alternatively Mr. S.K.Goverdhan as his nominee, but those names were also rejected. Lastly, the Petitioner accepted the name of one Mr. S. K.Joshi as Respondent’s 1 nominee. (iii) Thereafter, the charge sheet dated 17th May, 2001 was served on Respondent No.1. Respondent No.1 gave his explanation to the Petitioner by letter dated 1st June, 2001. In the charge sheet, in all 12 charges were levelled by the Petitioner­Management. Those are as under:­ (a) Charge No.1:­ The first Respondent did not submit dead stock verification report inspite of several letters. (b) Charge No.2:­ The first Respondent did not submit the documents such as cash books, Ledgers and Voucher files inspite of demands made by the management. 5 wp-1849-03.sxw (c) Charge No.3:­ relates to not calling School Committee meeting and causing loss of Rs.4885/­ as no timely approval was obtained for that expenditure from the school committee. (d) Charge No.4:­ The first respondent did not send appointment proposal dated 4.9.2000 of Mr.Ghadge for approval to the Education Officer (Secondary) Z.P. Solapur and salary of the said teacher could not be paid. (e) Charge No.5:­ The Respondent prepared budget 2001­2002 and forwarded to the management directly without obtaining sanction of the School Committee. (f) Charge No.6:­ The first respondent obstructed working of the management and the School Committee on the ground that he had challenged the election of the office bearers before the Joint Charity Commissioner, Latur even though there was no stay/injunction. (g) Charge No.7:­ The first respondent did not attend any of the 11 meetings of the Managing Committee in the capacity as a Head Master. (h) Charge No.8:­ The first respondent did not submit explanation regarding his teaching workload though asked for by the management as per letter No. S/167 dated 11.12.2000. (i) Charge No.9:­ The first respondent did not give his explanation about donation of Rs.4900/­ given by the Lioness Club of Barsi demanded by the management as per letter No. S/174 dated 27.12.2000. (j) Charge No.10:­ The respondent did not reply letter no. S/131 dated 10.10.2000 in respect of Internet connection. 6 wp-1849-03.sxw (k) Charge No.11:­ The first respondent did not explain excessive telephone bills as stated by him in his letter no. L/83 dated 26.10.2000. (l) Charge No.12:­ The first respondent did not submit report as to his activities during two days on duty leave in the office of Education Officer (Secondary) Solapur and the Deputy Director of Education, Pune Region , Pune. (iv) Thereafter, the enquiry committee proceeded with the enquiry and submitted their report to the management. On the basis of enquiry report, the management decided to terminate the Petitioner’s service and issued termination order dated 24th May, 2002. (v) The Respondent No.1 challenged the said termination order dated 24th May, 2002, by preferring an appeal under section 9 of the said Act before the the Hon’ble Presiding Officer, School Tribunal at Solapur. The Petitioner Management filed their Written Statement/Submission in the said Appeal dated 24th June, 2002 and opposed on several grounds. The School Tribunal after hearing both the sides, held that the termination order dated 24th May, 2002 issued by the Petitioner was against law and, therefore, the same was set aside. The Tribunal also held that the Petitioner Management failed to conduct the enquiry as per rules 36 and 37 of the M.E.P.S. Act (condition of service) Rules, 1981 (herein after referred to as “the said 7 wp-1849-03.sxw Rules”). 5 The learned counsel appearing on behalf of Petitioner vehemently challenges the order passed by the School Tribunal. He submits that the Tribunal erred in coming to the conclusion that the management failed to follow Rules 36 and 37 of the said Rules at the time of conducting enquiry. He further submits that though the enquiry committee held that all twelve charges were duly proved against Respondent No.1, the Tribunal erred in coming to the conclusion that those charges were not proved at all. He further submits that considering the gravity of the charges levelled against Respondent No.1, the School Tribunal ought to have dismissed Respondent No.1’s appeal preferred under section 9 of the said Act. 6 On the other hand, the learned counsel appearing on behalf of Respondent No.1 vehemently opposes the present Petition. He submits that the Tribunal rightly held that the Petitioner failed to conduct the enquiry as per rules 36 and 37 of the said Rules. He further submits that the School Tribunal categorically held that the Petitioner with malafide intention to harass the Respondent No.1, levelled twelve charges against him. Considering the facts and circumstances of the present case, the learned counsel appearing on behalf of Respondent No.1 submits that there is no merit in the 8 wp-1849-03.sxw present Petition and the same is liable to be dismissed with costs. 7 The learned A.G.P. appearing on behalf of Respondent No. 2 filed their affidavit in reply dated 6th April, 2011. The Education Officer also categorically stated in his affidavit in reply that the Petitioner failed to comply with Rules 36 and 37 while holding enquiry against Respondent No.1. He further submits that the charges levelled against Respondent No.1 are not specific but they are vague and many charges are not proper charges. He submits that there is no merit in the present Petition and the same is liable to be dismissed. 8 The Maharashtra Employees of Private Schools (conditions of service), Regulation Act, 1977 was enacted to regulate the recruitment and conditions of service of employees in certain private schools in the State of Maharashtra with a view to provide such employees security and suitability of service to enable them to discharge their duties towards pupils and guardians in particular, and the institution in general effectively and efficiently. In exercise of the power conferred by sub­sections 1 & 2 of section 16 of the Act of 1977 and all other powers enabling in this behalf, the Government of Maharashtra framed Maharashtra Employees of Private School (conditions of service) Rules, 1981. The said rules of 1981 provide procedure for imposing minor and major penalties. An employee 9 wp-1849-03.sxw covered under the Act and the Rules framed thereunder is liable to be punished on one or more of the grounds viz; misconduct; moral turpitude; wilful and persistent negligence of duty; and incompetence. Rules 36 and 37 which are relevant for the purposes of the present Writ Petition deal with Constitution of the enquiry committee and the procedure for considering enquiry instituted against an employee . The Rules 36 and 37 read thus:­ “Rule – 36 – Inquiry Committee: (1) If an employee is allegedly found to be guilty on [any of the grounds specified in sub­rule(5) of rule 28] and the Management decides to hold an enquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorized by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the Head concerned by registered post acknowledgment due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations. [(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in sub­rule(1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The Management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say, ­ 10 wp-1849-03.sxw (a) In the case of an employee – (i) one member from amongst the members of the Management to be nominated by the Management, or by the President of the Management if so authorized by the Management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of the decision of the Management; (ii) one member to be nominated by the employee from amongst the employees of any private school; (iii)one member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred; (b) in the case of the Head referred to in sub­rule (1) – (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; (iii) one member chosen by the President from the panel of Head Masters on whom State/National Award has been conferred]. [(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub­rule (2) by registered post acknowledgment due to the employee or the Head referred to in sub­rule (1),as the case may be, directing him to nominate a person on his behalf on the proposed Inquiry Committee and to forward the name along with the written consent of the person so nominated to the Chief Executive Officer or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect.] (4) If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within the stipulated period, the Inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as, provided in sub­rule (2). 11 wp-1849-03.sxw [(5) The Convener of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the inquiry.] (6) The meetings of the Inquiry Committee shall be held in the school premises during normal school hours or immediately thereafter, if the employee agrees and even during vacation.” “ Rule ­ 37 ­Procedure of inquiry: (1) The Management shall prepare a charge­sheet containing specific charges and shall hand over the same together with the statement of allegations and the explanation of the employee or the Head as the case may be, to the Convener of the Inquiry Committee and also forward copies thereof to the employee or the Head concerned by registered post acknowledgment due, within 7 days from the date on which the Inquiry Committee is deemed to have been constituted. (2)(a)Within 10 days of the receipt of the copies of charge­sheet and the statement of allegations by the employee or the Head, as the case may be, ­ (i) If the employee or the Head, as the case may be, desires to tender any written explanation to the charge­sheet, he shall submit the same to the Convenor of the Inquiry Committee in person or send it to him by the registered post acknowledgment due. (ii) If the Management and the employee or the Head, as the case may be, desire to examine any witnesses they shall communicate in writing to the Convenor of the Inquiry Committee the names of witnesses whom they propose to so examine, and (iii)If the Management desires to tender any documents by way of evidence before the Inquiry Committee, it shall supply true copies of all such documents to the employee or the Head, as the case may be. If the document relied upon by the Management is a register or record of the school it shall permit the employee or the Head as the case may be, to take out relevant extracts from such register or record. The employee or the Head as the case may be, shall supply to 12 wp-1849-03.sxw the Management true copies of all the documents to be produced by him in evidence. (b) Within 3 days after the expiry of the period of 10 days specified in clause (a), the Inquiry Committee shall meet to proceed with the inquiry and give 10 days notice by registered post acknowledgment due to the Management and the employee or the Head, as the case may be, to appear for producing evidence, examining witnesses etc., if any. (c) The Inquiry Committee shall see that every reasonable opportunity is extended to the employee for defence of his case. (d) (i) The Management shall have the right to lead evidence and the right to cross­examine the witnesses examined on behalf of the employee, (ii)The employee shall have the right to be heard in person and lead evidence. He shall also have the right to cross­examine the witnesses examined on behalf of the Management, (iii)Sufficient opportunities shall be given to examine all witnesses notified by both the parties. (e) All the proceedings of the Inquiry Committee shall be recorded and the same together with the statement of witnesses shall be endorsed by both the parties in token or authenticity thereof. The refusal to endorse the same by either of the parties shall be recorded by the Convener. (f) The inquiry shall ordinarily be completed within a period 120 days from the date of first meeting of the Inquiry Committee or from the date of suspension of the employee, whichever is earlier, unless the Inquiry Committee has, in the special circumstances of the case under inquiry, extended the period of completion of the inquiry with the prior approval of the Deputy Director. In case the inquiry is to be completed within the period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties, without prejudice to continuance of the Inquiry. (3) The Management and the employee or the Head, as the case may be shall be responsible to see that their nominees and the witnesses, if any, are present during the inquiry. However, if the Inquiry Committee is 13 wp-1849-03.sxw convinced about the absence of either of the parties to the dispute or any of the members of the Inquiry Committee on any valid ground, the Inquiry Committee shall adjourn that particular meeting of the Committee. The meeting so adjourned shall be conducted even in the absence of person concerned if he fails to remain present for the said adjourned meeting. (4) The Convener 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 acknowledgment 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. (5) The employee or the Head as the case may be shall submit his further explanation to the Convener of the Inquiry Committee within a period of seven days from the date of receipt of the summary of proceedings etc., either personally or by registered post acknowledgment due. (6) On receipt of such further explanation or if no explanation is offered within the aforesaid time the Inquiry Committee shall 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 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 acknowledgment 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 acknowledgment 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 acknowledgment due. The Management shall also endorse a copy of its order to the Education Officer or the Deputy Director as the case may be.” 14 wp-1849-03.sxw 9 A conjoint reading of the Rules 36 and 37 alongwith other provisions of Rules of 1981 would indicate that elaborate and self contained procedure has been provided to enquire, into the allegations of misconduct, moral turpitude, wilful and persistent negligence of duty and incompetence of the employee covered under the Act and Rules. The procedure contained in Rules 36 and 37 dealing with the constitution of Enquiry Committee and procedure of enquiry is intended to ensure that every reasonable opportunity is extended to the employee for the defence of his case in the enquiry instituted against him. The procedure prescribed in Rules 36 and 37 is based on primary principles of natural justice and fair play to ensure that an employee of the private schools covered under the Act and Rules is not condemned unheard. It provides enough opportunity to the employee to defend himself reasonably at all stages right from the time management decides to enquire into any misconduct, moral turpitude, wilful and persistent negligence of duty and incompetence of the employee and constitutes an Enquiry Committee proceeds with enquiry and submits its report. The Enquiry Committee is required to be constituted where major penalty is to be inflicted. Since in the present case the employee concerned is the Head of the School, I will confine myself to the procedure contemplated for holding enquiry 15 wp-1849-03.sxw against such Head of the School under Rules 36 and 37 of the Rules of 1981. First of all, Chief Executive Officer authorized by the management is required to communicate to the Head of the school by registered Post with AD the statement of allegations against him and seek written explanation from him within 7 days from the date of receipt of the statement of allegations. In case the head of the schools sends the explanation within time, the Chief Executive Officer or the President of the management has to look into the said explanation and if the explanation is not found satisfactory, the matter has to be placed before the management, within 15 days from the date of receipt of explanation. The management, then is required to decide within 15 days whether an enquiry needs to be instituted against such employee. If the decision is in the affirmative, Enquiry Committee is to be constituted which would comprise of (i) the President of the management, (ii) the member to be nominated by the delinquent head from amongst the employees of any private school and (iii) any member chosen by the President of the management from the panel of Headmaster or to whom State/National Award has been conferred. The Chief Executive Officer or the President of the management, as the case may be, is required, then to communicate the names of the members of the Enquiry Committee, nominated by the management 16 wp-1849-03.sxw and also by directing the delinquent head to nominate his name on the Enquiry Committee and to forward the name of such nominee along with written consent within 15 days of the receipt of communication to that effect. If the delinquent communicates the name of the person nominated by him along with his consent within the aforesaid time, the Enquiry Committee of all 3 members shall be deemed to be constituted on the date of the receipt of such communication by the Chief Executive Officer or the President of the management as the case may be. However, if the delinquent employee fails to communicate the name of his nominee within the stipulated period, the Enquiry Committee shall be deemed to have been constituted of only 2 members. The President of the management is to be the Convener of the Enquiry Committee and is required to maintain all the relevant record of the enquiry. Meetings of the Enquiry Committee have to be held in the school premises during normal school hours or immediately