vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2320 OF 2008 WRIT PETITION NO.2320 OF 2008 WRIT PETITION NO.2320 OF 2008 Shri Mankeshwar Shikshan Prasarak Mandal, Surul & anr. ... Petitioners V/s. Sanjay Tulshiram Shevale & Ors. ... Respondents Mr.V.A. Shastry for Petitioners Mr.A.M. Joshi for Respondent No.1 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: 8.8.2008 8.8.2008 8.8.2008 P.C.: P.C.: P.C.: . The petitioner has challenged the order of the School Tribunal, Kolhapur dated 1.11.2007 wherein the School Tribunal has held that the order of termination of service dated 5.6.2002 issued to Respondent No.1 is illegal and unjustified. The petitioners were directed to reinstate the respondent No.1 with full backwages and continuity of service from the date of termination. 2. The learned advocate for the petitioners contends that although it is true that no enquiry was held by the management of the school, the Tribunal ought not to have granted full backwages to Respondent No.1. He submits that the Full Bench of this Court (Nagpur bench) in the case of Saindranath Jagannath Jawanjal v/s. Pratibha Shikshan Sanstha & anr., 2007(3) Bom.C.R. 2007(3) Bom.C.R. 2007(3) Bom.C.R. 527 527 527 has held that when no enquiry is held, the Tribunal ought to direct the management of the school to hold an enquiry and while such enquiry is being held, the : 2 : management ought not to be directed to pay backwages. He further submits that the financial condition of the school is precarious and, therefore, any additional financial burden on it would adversely affect the working of the school. He then urges that no relief of reinstatement and backwages should be granted to Respondent No.1 since after termination of his service, he has been prosecuted for offences under sections 406, 420 of the Indian Penal Code and such a person should not be directed to be reinstated. The learned advocate also points out that since these charges are severe, the petitioners ought not to be directed to pay backwages to Respondent No.1 from the date of the termination of his service on 5.6.2000. 3. The Full Bench in the case of Saindranath Jagannath Jawanjal (supra) has relied on two judgments of the Supreme Court, one in the case of U.P.State Textile Corporation Limited v/s. P.C. Chaturvedi, (2005) 8 SCC 211 (2005) 8 SCC 211 (2005) 8 SCC 211 and U.P. State Spinning Company Ltd v/s. R.S. Pandey & Anr., (2005) 8 SCC 264 (2005) 8 SCC 264 (2005) 8 SCC 264. Both these judgments were in respect of an industrial worker being terminated from service without holding a proper enquiry. Undisputedly, a domestic enquiry was held in both these cases. However, it was found to be defective and, therefore, the Supreme Court directed that the enquiry proceedings should be commenced by the : 3 : management from the stage from which the defect has crept in. The Supreme Court has followed its earlier judgement in Managing Director, ECIL v. B.Karunkar, (1993) 4 SCC 727 (1993) 4 SCC 727 (1993) 4 SCC 727 where the Court was dealing with the question whether the enquiry would be vitiated if the report of the enquiry officer was not furnished to the delinquent employee and whether such an employee would be entitled to reinstatement with continuity of service and full backwages. The Supreme Court had in the facts and circumstances of the case observed thus: 31. ... It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the court/tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to backwages and other benefits from the date of his dismissal to the date of his reintatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final ouotcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according ot law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the : 4 : report and no more, where such fresh inquiry is held. That will also be the correct position in law. The Supreme Court has followed the Managing Director, ECIL judgment (supra) and held that it would not be proper to grant full backwages to the workman till the date when the defect crept in but rather to permit the Tribunal to decide whether the backwages should be granted in the entirety or upto the date when the defect was noticed. 4. The Full Bench in the case of Saindranath Jawanjal (supra) has observed thus: 45. At this stage, it would be relevant to make reference to the cases of Government employees, who are protected under Article 311 of the Constitution of India. If the punitive action leading to dismissal, removal or reduction in rank without holding enquiry is taken in case of Government employee, then no alternative is left for the courts but to direct reinstatement with full back wages. However, in the recent judgments, the Apex Court has adopted little different route and permitted the management to hold departmental enquiry from the stage the illegality has crept in. In this behalf, readily available judgments are in the cases of (State of Punjab and others Vs. Dr.Harbhajan Singh Greasy, U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & anr) 24, (2005) 8 SCC 264, (U.P. State Textile Corpn. Ltd. Vs. P.C. Chaturvedi and others) 25, 2005(8) SCC 211; wherein the Supreme Court has observed that in case of no enquiry or defective enquiry, proper relief is to set aside the dismissal with direction to the management to hold enquiry from the stage the illegality has crept in and that the reinstatement is to be treated for the purposes of holding fresh enquiry and no more. So far as back wages are concerned, the : 5 : entitlement thereof is to make dependent on the final outcome of the fresh enquiry. 46. The aforesaid principle has been adopted by the Division Bench of this Court while considering provisions of the M.E.P.S. Act in the case of (Kashiram Rajaram Kathane Vs. Bhartiya R.B. Damle Gramsudhar Shikshan Prasar Sanstha) 26, 1997(4) Bom.C.R. 398:1997(3) Mh.L.J. 235; wherein and the Division Bench has read the aforesaid statement of law and the principles recognised by the Supreme Court in section 11 of the Act. This view is holding the field for a decade. 47. The upshot of above is that the M.E.P.S. Act and Rules do not subscribe to the action of the management leading to inflicting major penalties without holding enquiry as contemplated under the provisions of the Act and Rules. In this backdrop, in case of "no enquiry", the school management cannot be allowed to justify their action, for the first time, before the School Tribunal. It is open for the School Tribunal; to adopt the same route which has been adopted by the Supreme Court in the case of Dr.Harbhajan Singh Greasy with some other cases noted supra but the school management cannot be allowed to justify their action for the first time before the Tribunal in case of no enquiry. In case of enquiry:" 5. These observations of the Full Bench would indicate that the question before the Full Bench was whether a management which has held a defective enquiry should be permitted to lead evidence before the tribunal under the MEPS Act, as is the procedure under the provisions of section 11A of the Industrial Disputes Act. The Full Bench therefore has not considered a case where no enquiry has been held at all as in the present case. A permanent workman has been terminated from service admittedly merely by issuing a notice to him : 6 : which is supposedly a showcause notice. The explanation was not found to be satisfactory by the petitioners and, therefore, they took the extreme step of terminating the services of the respondent No.1. Thus, there was no concerted effort on the part of the management to hold an enquiry at all. Rule 36 of the MEPS Rules provides for appointment of an enquiry committee if the management feels that the explanation submitted by an employee is not satisfactory. In the present case, the employee was called upon to explain why no action should be taken against him which in my opinion, would amount to a showcause notice as envisaged under rule 36. However, enquiry proceedings would commence only on the appointment of the enquiry committee or in any case a decision by the management to appoint such committee. In the present case, no such decision has been taken and therefore, in my view, although the management can hold an enquiry, the employee must be paid backwages till he is reinstated in service whether notionally or otherwise as the termination of service is illegal and void. The Supreme Court in J.K. Synthetics Ltd. v/s. K.P. Agrawal & Anr., (2007) 2 SCC 433 (2007) 2 SCC 433 (2007) 2 SCC 433 has held that where backwages are awarded pursuant to termination/retrenchment which has been held to be illegal and invalid for non-compliance with statutory requirements, full backwages would be the rule. The Supreme Court while considering whether backwages should : 7 : be the normal rule in case of termination of service on account of misconduct has held thus: 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination. In the present case, the petitioners have not issued a chargesheet nor held any enquiry against the respondent employed which it was bound to do under the MEPS Rules and, therefore, this would amount to termination of service effected by breaching the statutory provisions. 6. In my view, there is no error committed by the School tribunal in directing reinstatement with continuity of service and full backwages. However, the observation of the Tribunal that the management should wait till the criminal prosecution against respondent No.1 which is pending before the JMFC, Karad is complete before holding an enquiry is uncalled for. There is no need in my opinion, for a domestic enquiry to be stayed merely because a criminal prosecution is pending against the employee unless as is well settled by the Supreme : 8 : Court the employee would run the risk of double jeopardy. 7. The petition is therefore, disposed of with the following order: O R D E R i) The petitioners will reinstate the employee in service with continuity of service and pay him full backwages from the date of termination of his service upto the date of reinstatement. ii) The petitioners are at liberty to hold a domestic enquiry against the Respondent employee, if so advised, in accordance with the provisions of the MEPS Act and the Rules framed thereunder by observing the principles of natural justice and fair play. iii) In the event the petitioners do not want to physically reinstate the Respondent employee, they may take recourse to the provisions of the MEPS Act and Rules thereunder which permit suspension of an employee pending the enquiry. iv) The enquiry need not commence only after the : 9 : result of the criminal prosecution. 8. Petition is disposed of accordingly. 9. The learned advocate for the petitioners requests for stay of this order. Stay refused.