WP/748/1994 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.748 OF 1994 Sanskar Jyot Trust & anr. ... Petitioners V/s. Brijmohan T. Panwala ... Respondent Mr.L.M. Nerlekar for Petitioners Mr.R.R. Bhonsale for Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 3, 2010 ORAL JUDGMENT: 1. The petition has been filed against the order of the School Tribunal dated 17.9.1983. By this order, the School Tribunal had allowed the appeal filed by the employee who is the respondent in this petition. The School Tribunal had set aside the decision of the enquiry committee and directed the petitioners to reinstate the employee in his original post and to pay him backwages from the date of termination of his services till reinstatement. Unfortunately, the employee has expired. His heirs have been brought on record by an order of this Court dated 8.6.2007. 2. The facts in brief are as follows: The Petitioners had employed the original Respondent (who will hereinafter be referred as `the respondent') as an assistant teacher. The Respondent had committed several acts of grave and serious misconduct on 4.8.1987. These acts WP/748/1994 : 2 : included assaulting and abusing lady teachers and outraging their modesty in the school premises. An enquiry was conducted against the respondent and his services were terminated on 9.5.1988. Due to the several acts of misconduct which were extremely serious and involving acts of moral turpitude, a criminal complaint was lodged on 5.8.1987 by the teachers who faced these acts of the respondent. The Respondent was convicted on 8.12.1989 as he was found guilty of the offence punishable u/s 323 of the Indian Penal Code. 3. Immediately after the incident on 4.8.1987, the Respondent was placed under suspension w.e.f. 7.8.1987. Several proceedings were filed by the respondent challenging his suspension. However, those proceedings were decided against him. On 10.12.1987, a statement of allegations was forwarded to the Respondent as the Petitioners contemplated holding an enquiry under the MEPS Act and the Rules framed thereunder. The respondent was informed by a letter dated 12.1.1988 that an enquiry committee was constituted to enquire into the acts of misconduct alleged against him. He nominated his representative on the enquiry committee as permissible under the MEPS Rules. On 13.2.1988, a chargesheet was issued to the respondent under Rule 37 of the aforesaid rules. The meeting of the enquiry committee was held on 10.3.1988. The respondent then filed suit No.3178 of 1988 before the City Civil Court seeking a stay of the enquiry. That prayer was rejected on 24.4.1988. A letter was sent to the respondent under Rule 37(f)(iv) of the MEPS Rules. A report was submitted by the committee holding the Respondent guilty of the misconduct alleged against him. He was terminated from service by a letter dated 9.5.1988. Being aggrieved by the decision of the Petitioners, the Respondent filed an appeal before the school tribunal on 13.6.1988. The parties filed their pleadings WP/748/1994 : 3 : and relevant documentary evidence on record. The Tribunal heard the arguments of the parties in September 1992 and surprisingly delivered the impugned judgment on 17.9.1993, i.e. after one year from the completion of the arguments. As mentioned above, by the impugned order, the Tribunal allowed the appeal on the ground that reasonable opportunity was not afforded to the Respondent to defend himself during the course of the departmental enquiry. 4. Mr.Nerlekar, appearing for the petitioners, takes exception to the impugned order and submits that the long lapse of one year in delivering the judgment after the arguments were concluded has resulted in a miscarriage of justice. He points out that the School Tribunal has contradicted itself in the order by holding at one stage that reasonable opportunity was afforded to the respondent in accordance with Rule 37(2), while later in the judgment the Tribunal has found that the enquiry committee had not given any opportunity to the Respondent to cross-examine the management witnesses. He submits that the Tribunal has held categorically that enquiry committee had not committed any error in not permitting the respondent to cross- examine the witnesses of the management after the enquiry was concluded. However, the Tribunal has later held, according to Mr.Nerlekar, that this refusal amounts to a violation of the mandatory provisions of law and the principles of natural justice. He submits that it was the respondent who refused to cross-examine the management's witnesses after each one of them had deposed before the enquiry officer. According to him, the respondent declared that his advocate would cross- examine these witnesses in Court and therefore declined to cross-examine them before the enquiry committee. He submits that the finding of the Tribunal that the enquiry had been conducted in violation of the rules of natural justice is contrary to WP/748/1994 : 4 : the material on record and therefore must be set aside. Mr.Nerlekar then submits that assuming the Tribunal was right in concluding that the enquiry was vitiated, an opportunity ought to have been given to the management to support its action by producing evidence before the Court. He then submits that the nature of the misconduct alleged against the respondent was extremely serious and involved the reputation and the modesty of the lady teachers and, therefore, the Petitioners found it necessary to dismiss the respondent after holding a proper enquiry. 5. Mr.Bhonsale, appearing for the respondent, submits that great prejudice was caused to the respondent as the management had decided to commence an enquiry when the criminal proceedings were pending against the Respondent. He submits that both proceedings continued at the same time and that had led to a situation where the Respondent would have been compelled to disclose the defence which he would have taken before the criminal court, during the enquiry proceedings. He therefore, submits that the Tribunal has committed no error in deciding the appeal in favour of the Respondent. The learned advocate further submits that no prejudice would have been caused to the Petitioners had the enquiry committee permitted to Respondent to cross-examine the witnesses by complying with his request contained in the letter dated 30.4.1988 sent to the enquiry committee. 6. I have perused the impugned judgment and order and I find that the objections raised by Mr.Nerlekar to this order are valid. The Tribunal has proceeded in several paragraphs to hold that reasonable opportunity was given to the respondent to defend himself at the enquiry in accordance with Rule 37(2). It has been further held that the decision of the enquiry committee, not to allow cross- WP/748/1994 : 5 : examination of the management's witnesses after the closure of the enquiry proceedings, could not be faulted. The Tribunal has also accepted the management's contention that the charges were not vague and that the Petitioners were not biased against the Respondent. The Tribunal further concluded that the enquiry committee had been properly constituted in accordance with Rule 36. It further held that the convener of the enquiry committee was not biased or prejudiced and that the evidence of the witnesses had been properly recorded. The Tribunal then concluded that the findings of the recommendations of the enquiry committee were proper and that the termination based on those findings could not be faulted especially since the report of the enquiry committee was signed by the nominee of the Respondent as well. After these observations and conclusions were recorded, the Tribunal ruled that the enquiry committee had breached the principles of natural justice by declining to permit the respondent to exercise his valuable right to cross- examine 7 witnesses examined by the management. 7. These contradictory findings of the Tribunal are unacceptable. The reasons given by the Tribunal for allowing the appeal are far from cogent and have no nexus with the reasons given in the earlier part of the order for concluding that the enquiry had been properly conducted against the Respondent. 8. It appears that the main grievance of the Respondent before the School Tribunal was that all 7 witnesses of the management were examined on the same date and he was asked to cross-examine them immediately thereafter. However, this procedure by itself cannot amount to violation of the principles of natural justice or the procedure of conducing an enquiry laid down under Rule 37. The Tribunal itself WP/748/1994 : 6 : has observed that the statements of each of these 7 witnesses were short and therefore it was possible to record them all on one day. The enquiry proceedings indicate that after the evidence of each witness was recorded, the respondent was afforded an opportunity to cross-examine the witness. However, he declined to do so and stated that the witnesses would be cross-examined by his advocate in Court 9. In Bank of India vs. Apurba Kumar Saha, 1994 II CLR SC 131, the Supreme Court has held that a bank employee who refused to avail of opportunities provided to him in a disciplinary proceeding of defending himself in respect of charges of misconduct involving his integrity and dishonesty cannot complain later that he was denied a reasonable opportunity to defend himself at the enquiry. This view has been reiterated by the Supreme Court in the case of Board of Directors, H.P.T.C. & Anr. vs. K.C. Rahi, 2008 (3) ALL MR 465. The Supreme court has held that when the delinquent in a departmental enquiry decides not to participate in the enquiry proceedings at his own risk, he is estopped from raising the plea of non-compliance of the principles of natural justice. Similarly, the Division Bench of this Court in the case of Dr.Jaisingh Baburao Ghugare vs. State of Maharashtra & Ors., 2008 (3) ALL MR 293 has observed that when the delinquent employee had not participated in a major part of the enquiry, he cannot be heard to make a grievance that the enquiry was not held in accordance with the principles of natural justice. 10. In these circumstances, in my view, when the Tribunal itself has found that reasonable opportunity had been afforded to the respondent to defend himself at the enquiry, the reasons for allowing the appeal are unsustainable. The Tribunal could not have accepted the contention of the respondent that he was denied such WP/748/1994 : 7 : opportunity when the respondent had declined to cross-examine the management's witnesses. 11. The submission of the learned advocate for the respondent that had the respondent cross-examined the witnesses when afforded the opportunity he would have been required to disclose his evidence is unsustainable. The learned advocate has submitted that no prejudice would have been caused to the management had it allowed the respondent to cross-examine the witnesses as requested in his letter dated 30.4.1988 although the enquiry was closed on 16.4.1988. This submission of the learned advocate is also unacceptable. 12. It is well settled now in view of the several judgments of the Supreme Court and the High Courts that a departmental enquiry need not always be stayed only because a criminal prosecution may be pending against a delinquent workman. In fact, it is only when the charges are so grave that any statement made by the delinquent employee in the enquiry or the disclosure of his defense in the enquiry would prejudice his trial that an exception could possibly be made. However, there is no hard and fast rule in this respect and the facts and circumstances of each case need to be considered independently. In the present case, the argument of the respondent that by cross-examining the witnesses he would have disclosed his defence at the criminal trial is without any basis. Had this been his apprehension he would not have sought to cross-examine the witnesses by a letter allegedly written by him on 30.4.1988 requesting such information as the trial was completed only on 8.12.1989. Therefore, in my view, the submission of the learned Counsel is without merit. WP/748/1994 : 8 : 13. Mr.Nerlekar is right when he submits that assuming the Tribunal had found that the enquiry conducted against the respondent was vitiated an opportunity ought to have been afforded to the management to justify its action by producing evidence before the Court. This has been so held in the case of Bal Shikshan Mandal, Sangamner & anr. Vs. Poonam Rameshwar Joshi & Anr., 2003 I CLR 536. In the case of Saindranath Jagannath Jawanjal vs. Pratibha Shikshan Sanstha & anr., (supra) 2007(3) Bom.C.R. 527; 2007(5) LJSOFT (URC) 20, the Full Bench has held that the power of the Tribunal to take additional evidence is based on the application made by the school management to lead additional evidence. The Full Bench has considered when such an application can be made by the management. In paragraphs 56, 57 and 58 the Court has observed thus: 56. Now the question comes: how and at which stage the School Management is expected to seek leave from the Tribunal to lead additional evidence in exercise of its right. In our considered view, such right should be exercised, as soon as there is challenge to the action of the management, in appeal before the Tribunal, contending that there was no sufficient evidence to prove the charges leveled against the appellant/employee. In the event of exercise of such right by the school management, the Tribunal is expected to consider the question of grant of leave to lead additional evidence subject to compliance of provision of order 41 rule 27 of C.P.C. In the event of grant of leave opposite party-employee would also get an opportunity of placing his side before the School Tribunal i.e. when the School Management is allowed to lead additional evidence on the question of misconduct before the Tribunal. 57. At the same time, if the employee comes before the Tribunal challenging the punitive order on merits in appeal contending that the evidence is not sufficient to prove alleged misconduct or that he has some additional evidence in his possession to establish his innocence, which he could not produce for want of knowledge in spite of due diligence at the time when the enquiry was conducted; in such circumstances, there is no fetter on the power of the School Tribunal to admit such evidence at the instance of the employee. It is, thus, always open for the School Tribunal to take such additional evidence on record for the reasons to be recorded, after giving rival parties fair opportunity following principles of natural justice. This power, WP/748/1994 : 9 : however, has to be exercised by the Tribunal before expressing its opinion about validity or invalidity of the punitive action of the management challenged in appeal. In every case, the management cannot be allowed to lead de novo evidence before the Tribunal because that right is circumscribed with certain conditions laid down under order 41 rule 27 as indicated hereinabove. 58. The Tribunal, therefore, has power to take additional evidence on record only in the contingency, where the management or employee wants to supplement the evidence already on record by leading additional evidence to prove their contentions, however, subject to the provisions of section 107 read with order 41 rule 27 of C.P.C. After leading the evidence by both the parties in support of their contentions, it is always open to the Tribunal, in exercise of its power of judicial review, to reappreciate the said evidence so as to find out whether or not action of the school management can be sustained. 14. The Tribunal then considered the provisions of the Industrial Disputes Act and the judgments delivered under these provisions as well as the Industrial Employment (Standing Orders) Act, 1946. The Full Bench has drawn a distinction between the powers vested in the Industrial Tribunal or the Labour Court under the aforesaid legislations and the powers of the School Tribunal. In paragraphs 63 and 64, the Court has observed thus: 63. The policy of law emerging from the Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute. As against this, the M.E.P.S. Act and Rules constitute statutory provisions themselves. As such, free-hand given to the employer under Industrial and Labour Legislations to lead evidence to prove misconduct in case of no enquiry or defective enquiry cannot be recognised in toto while considering such cases arising under the provisions of the M.E.P.S. Act and Rules. 64. In the aforesaid backdrop, we hold that the Tribunal has a power to take additional evidence on record mainly in the contingency, when the management wants to supplement its evidence already on record, at the same time, the employee has also a corresponding right to lead additional evidence WP/748/1994 : 10 : either in rebuttal or to supplement his attempt to dislodge the action of the management, again but subject to the provision of order 41 rule 27 of C.P.C. This is independent of power of the Tribunal given under sub-rule (1)(b) of rule 27 of order 41 of C.P.C. The parties, thereafter, are expected to leave the matter in appeal for being decided by the Tribunal on its own merits. The Court has further observed that in certain cases where compelling circumstances make it impossible for the management to hold an enquiry before dismissing an employee, the Tribunal may permit the school management to lead evidence to prove its case. The Full Bench has observed thus: 65. But this should not be understood as placing fetters on the powers of the Tribunal. It is always open to the Tribunal to exercise its powers on the peculiar facts and circumstances of each case as it deems just and necessary in the interest of justice. Take a case where the management is not in a position to hold enquiry because of the situation brought about by the employee himself making it impossible for the management to hold enquiry before taking punitive action against him, in such contingency, the School Tribunal is not powerless to permit the School management to lead evidence to prove the act of misconduct before it to support its action. This legal sanction in law is implicit in sub-rule (b) of rule 27 of order 41 of C.P.C. which reads as ".....for any other substantial cause" This clause gives wide discretion to the Tribunal, which, no doubt, is required to be exercised judiciously for the reasons to be recorded. But, exercise of such powers in every case; in a routine manner would take away the very object of the legislation meant to provide the employees security and stability of service to enable them to discharge their duties effectively and efficiently. Therefore, such power is available for being exercised only in the extremely exceptional cases and in compelling circumstances and not in a routine manner in every case. 66. We may make it clear and clarify that although we have observed that in certain extremely exceptional and compelling contingencies the school management may, in a case of grave nature of misconduct, dismiss the employee without holding an enquiry but, ordinarily, such an enquiry should not be dispensed with unless it is impossible to hold. In the event, it is found ultimately by the Tribunal that the School Management has taken recourse to dispense with the enquiry without any exceptional and compelling circumstance or the order of termination has been passed mala fide or by way of victimization, then it would be open to the Tribunal to award suitable compensation to the employee and adopt the route followed by the Division Bench of this Court in the case of Kashiram Kathane (supra) for the reason that the mandate of the Act and Rules has not been followed and principles of natural justice have not been complied with. WP/748/1994 : 11 : 14. The Full Bench has held that the powers of the Tribunal are circumscribed by the provisions of Order 41 Rule 27 of the CPC inasmuch as the Tribunal can admit additional evidence in an appeal. However, when the management of a school cannot be permitted to lead evidence de novo but can be permitted only to supplement the evidence already on record. The Court has further held that although under industrial jurisprudence the employer can be permitted to lead evidence to prove the misconduct in a case of no enquiry or a defective enquiry, that right is not recognised in toto while considering cases arising under the provisions of the MEPS Act and the Rules thereunder. Admittedly, the Tribunal has not followed this procedure and therefore the direction to reinstate the respondent with backwages is unsustainable. 15. The impugned order is, therefore, set aside. Rule made absolute accordingly. No costs. 16. It appears that when the petition was admitted, interim relief was granted, staying the order of the Tribunal on condition that the petitioners deposit Rs.1 lakh in this Court. Permission was granted to the Respondent to withdraw the amount on giving security to the satisfaction of the Registrar General. It appears that the respondent then moved the Court indicating that he was unable to furnish the security for this amount. This Court then permitted him to withdraw Rs.50,000/- unconditionally and the remaining amount by furnishing a security. Accordingly, the respondent withdrew the amount of Rs.50,000/- whereas the balance was invested by the order of this Court. Since the petition has been allowed, the amount which has been invested by this Court shall be returned to the petitioners alongwith accrued interest.