W.P. 769/2009 1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 769/2009 Keshar S/o Ramcharan Jaiswal, Age: 38 Years, Occu.: Service as Assistant Teacher, R/o Rahul Niwas, Ward No.3 Gokunda, Tq. Kinwat, District Nanded. ...PETITIONER VERSUS 1 Shri Tukaramji Keshav Shikshan Sanstha Ashta, Tq. Mahur, District Nanded. Through: its President / Secretary. 2 Babasaheb Mukhte Vidyalaya, Kinwat, Tq. Kinwat, Dist. Nanded, Through it’s Head Master. 3 The Education Officer (Secondary) Zilla Parishad, Nanded. ...RESPONDENTS. Mr. Rajendra Deshmukh Advocate for the applicant. Mr. D.J. Chaudhari, Advocate for respondent Nos. 1 & 2. Smt. S.D. Shelke, A.G.P. for respondent No.3. CORAM : A.V. NIRGUDE, J. DATED : 5th May, 2011. ORAL JUDGMENT: 1. This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, challenging the judgment and order dated 08th December, 2008, passed by the learned Presiding Officer, School Tribunal, Latur, in Appeal No. 23 of 2008, in which the petitioner was the appellant. 2. It is common ground that the petitioner was working as Assistant W.P. 769/2009 2 Teacher, in the school run by respondent Nos. 1 and 2 at Kinwat, District Nanded. It is also common ground that, the petitioner was transferred to this school, in July, 2005, and that till September, 2007 no complaints were received against the petitioner. On 11th September, 2007, respondent Nos.1 and 2 received complaints in writing, signed by the six girl students of 10th Standard, who were the students of the petitioner at the relevant time, and who alleged that the petitioner was sexually harassing them. The Management also received a report of two lady teachers of the school confirming that they too had received similar complaints against petitioner from the said girl students. The Management asked the petitioner to submit his reply to such allegations, the petitioner contended in his reply that until the copy of the complaint is received by him, he would not be able to deal with the allegations. 3. The Management still found his explanation unsatisfactory and the Management suspended the petitioner on 31st October, 2007 and then constituted Inquiry Committee. The Management appointed one Shri B.R.Chate as one of the member of the Committee at the request of the petitioner. The management then served charge-sheet against the petitioner and thereafter, the petitioner pleaded not guilty to the charges, and so on the Inquiry Committee held meetings on 10.01.2008, 21.01.2008, 04.02.2008, 11.02.2008, 15.02.2008 and 21.02.2008. The petitioner, as well as his representative Shri Chate attended the meetings of the Committee. The Committee then examined number of witnesses including the victim girls student, who had made allegations against the petitioner. On one hand, the petitioner did not cross examine the witnesses, but on the other hand, his representative tried to do so, but in vain. Ultimately, the W.P. 769/2009 3 Committee submitted a report holding that charges were proved. The report was signed by other two members of the Committee, but Shri Chate the representative appointed by the petitioner refrained from signing the report. Admittedly, he did not submit his own report. The petitioner was again offered opportunity to explain as to why action should not be taken against him, and ultimately on 12th March, 2008 the petitioner was terminated. 4. The petitioner filed an appeal before the School Tribunal, but having regard to the facts and circumstances of the case, his appeal was dismissed. 5. In a case of like this nature, the Management is under obligation to follow the procedure laid down in Rule 36 and 37 of the Maharashtra Employees of Private Schools (Conditions of Services Regulation Act) 1977 (Herein after referred to as “MEPS Rules”) for conducting the inquiry. In a case of this nature, when the Management finds a employee prima facie guilty of any of the grounds specified in Sub-Rule 5 of Rule 28 of the MEPS Rules, the Management may hold an inquiry against such employee. 6. The Rule 36 of the MEPS Rules provides as to how such Inquiry Committee is constituted and Rule 37 provides and procedure for conducting such inquiry. 7. The learned Presiding Officer found that there was practically no violation of the rules, while the Management constituted the Inquiry Committee and conducted same. The learned Presiding Officer held that the Committee was constituted properly, the Committee meetings were conducted in presence of the petitioner, as well as his representative and evidence against the petitioner was recorded in his presence. I heard the submissions of both the W.P. 769/2009 4 counsels. 8. Only objection that could have been raised and was raised at the time of the trial was that the petitioner and his representative of Committee were denied opportunity of cross examination to the witnesses. I perused the record. I found that despite of constitution of the Committee, in which the petitioner had nominated one of his representatives, despite of the fact that the petitioner remained present when the evidence was recorded, the petitioner as well as his representative did not avail opportunity of cross examination. There is nothing on record to show that the petitioner was denied an opportunity of cross examining the witnesses. The presence of the representative of the petitioner ensured fairness in the inquiry. Had the representative found that inquiry was not fair or that the petitioner was not given sufficient opportunity to defend himself, he could have certainly raised his objection to the fairness of the procedure, he could have made his comments in writing on the proceedings, during the inquiry. He could have even submitted his own report in respect of not only fairness of the inquiry, but also in respect of credibility of the witnesses etc. The learned Presiding Officer has rightly pointed out that if this was not done by the representative of the petitioner, the petitioner practically has no defence. 9. Mr. Deshmukh learned counsel appearing for the petitioner made following submissions and I would deal with them one by one. 10. He said, the petitioner did not get sufficient opportunity to defend himself. He pointed out that on 14/01/2008 a few days prior to the actual beginning of the inquiry, the petitioner wrote a letter and W.P. 769/2009 5 expressed his doubt about the fairness and impartiality of the inquiry that would be held against him. Indeed such a letter was written by the petitioner and has gone before the committee. As per the rules, the committee was formulated some time prior to 10th January, 2008. The petitioner was given an opportunity to nominate a member of his choice and he did nominate one Shri Chate as his representative. The third member of the committee was one Chaudhari who is not connected to the management of the School but who is a meritorious award winning teacher of some other School. On 21 January, 2008 it is seen, the committee met. This was virtually the first date of hearing. The petitioner was present. All the committee members were present. The Head Master of the School was present and on that day, in presence of all these persons, statements of the victims were recorded. On perusal of the report, I found that the petitioner or his representative did not raise any objection to the veracity and truthfulness of the statements of the victims. It seems, one of the complainants, one Shamla Chavan made an application to the committee withdrawing her allegations against the petitioner. Her statement was not recorded as one of the complainants. Even then the relevance, veracity and truthfulness of the remaining five complainants would not be reduced. On that day, the complainant or his representative raised no objection to the procedure adopted by the committee for recording statements of the witnesses. The representative of the petitioner duly signed the minutes of meeting. Even on the next date of hearing minutes of the earlier meeting dated 21st January, 2008 were read out to the meeting and yet no objection was raised either by the petitioner or his representative. The petitioner is not a weak or dumb person. He is evidently quite W.P. 769/2009 6 aggressive and vociferous. He had been writing letters raising protests against the action initiated against him but on that day i.e. on 21st January, 2008, he and his representative were unusually silent. They made no attempt to raise objection to the truthfulness of the victims’ statements. During subsequent meetings of the committee, statements of other witnesses were recorded and it seems, the representative of the petitioner extensively cross examined them. The record shows the cross examination. It can not be argued that the petitioner did not get an opportunity to defend himself or to cross examine the witnesses. 11. Shri Deshmukh further argued that the procedure followed by the committee for conducting inquiry was not fair. But as said above, there is nothing on record to show that the petitioner or his representative raised any objection to the fairness of the correctness of the inquiry etc.. 12. Shri Deshmukh then made reference to two judgments of this Court. They are as under. (1) Nandkumar Mahadeo Dengane Vs. Bhavika Vidya Prasarak Mandal and others reported in 2008(5) Mh.L.J. 598. (2) Yavatmal Islamia Anglo Urdu Education Society & another Vs. Mujib Ahmed Abbas Ali & another, reported in 2010(1) ALL MR 810. 13. Having regard to the ratio of these judgments, I found that both are not applicable to the present case. In first mentioned case, the learned single judge of this court highlighted the importance of the inquiry and its mandatory requirement. In this case, it is found that the inquiry was conducted properly as per rules referred to above. W.P. 769/2009 7 14. In the second mentioned judgment, the learned single judge of this court pointed out that though word appeal described, the proceeding before the Presiding Officer of the Tribunal, it is not actually an appeal but it is the first Court where trial takes place. Here, in this case, there is no dispute about this proposition. The parties approached the Tribunal as if they were before the trial Court but incidentally both parties chose not to led evidence and preferred to rely on the documents that were produced before Court. All the documents that were produced before Presiding Officer were admitted documents. 15. The petitioner after completion of inquiry tried to contend that the victims were pressurised to depose against him. He in fact, obtained affidavits from four victims and their parents withdrawing their allegations against him. Assuming that four of the victims had withdrawn their allegations yet the outcome of the inquiry would not change because such retracted statements of the witnesses were not before the committee and such retracted statements can not be said to be relevant material. I do not want to dilate on this issue because it appears to me that this was the petitioner’s last ditch attempt to protect and save himself from ignominy. ORDER The petition stands dismissed. Rule discharged. [A.V. NIRGUDE, J.] ts k/2011/May5/wp769.09/ok