WP/4433/2010 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4433 OF 2010 Rangdas Swami Shikshan Vikas Mandal, Pune & Ors. .. Petitioners V/s. Mutyal Vilas Rambau & Ors. .. Respondents Mr. D.S. Mhaispurkar for the Petitioners. Mr. Subhash Langote i/b. Mr. V.A. Madane for Respondent No.1. Mr. A.P. Vanarse, AGP, for Respondent No.2. CORAM :SMT. NISHITA MHATRE, J. RESERVED ON :16 TH JULY, 2010. PRONOUNCED ON:6 TH AUGUST, 2010. P.C.: 1. Rule. Rule returnable forthwith, by consent. 2. The challenge in this Writ Petition is to the Judgment and Order of the School Tribunal, Pune, dated 23rd April, 2010, in Appeal No.47 of 2009. The School Tribunal has set aside the findings of the Enquiry Committee constituted to hold an enquiry against the respondent No.1 and consequently has set aside the decision of the petitioners to terminate the services of respondent No.1. The WP/4433/2010 : 2 : petitioners have been directed to reinstate the respondent No.1 w.e.f. 16th November, 2009. Liberty has been granted to the petitioners to conduct an enquiry against the alleged acts of misconducts committed by respondent No.1 after issuing a proper charge sheet under Rule 37(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, (for short “the MEPS Act”), and thereafter to hold an enquiry in accordance with the provisions of Rule 37 of the MEPS Act. The School Tribunal has directed the petitioners to pay salary to respondent No.1 from 20th August, 2009 till he is reinstated in service, before commencing the enquiry. It has further directed the petitioners to continue to pay the salary while the enquiry is pending. Costs for the proceedings have also been awarded. 3. The School Tribunal has held that the Enquiry Committee was constituted under the MEPS Act prior to issuance of the charge sheet whereas Rule 37(1) of the aforesaid Rule prescribed that the charge WP/4433/2010 : 3 : sheet must be issued within 7 days of the constitution of the Enquiry Committee. The School Tribunal has not accepted the contention of respondent No.1 that the Enquiry Committee was not properly constituted. However, it has concluded that the enquiry was held contrary to the principles of natural justice and that the procedural requirements of a valid enquiry as mentioned in Rule 37 had been violated. The infirmities found by the Tribunal in respect of the enquiry were as follows : “36. The infirmities may be enlisted as follows: (1). There was no proper charge sheet summarizing the charges against the Appellant and calling his reply to the same; (2). No witness list was submitted by the Management and without such list it has all of a sudden recorded submission of its representative Shri. Vishwasrao in the name of recording the Management’s case and without mentioning that it was by way of evidence and it has never called upon or given opportunity to the Appellant to cross-examine said witnesses; WP/4433/2010 : 4 : (3). The proceeding of the enquiry Committee was abruptly stopped and concluded on 05.10.2009 by the Convener merely on the count of refusal of the Appellant and his nominee to sign the attendance sheet; (4). Thereafter no meeting of the enquiry Committee was held till 03.11.2009; (5). Despite the fact that no such meeting was held, the Convener has conducted the matter on his own in making correspondence with the Appellant and asking him to make his further explanation. Such explanation called by the Convener in his individual capacity does not meet the requirement of Rule 37(4) of the M.E.P.S. Rules; (6). The Management has neither suspended the Appellant nor paid his salary during the period of enquiry. Thus there was contravention of M.E.P.S. Rules in conducting the enquiry.” 4. The School Tribunal, therefore, set aside the enquiry conducted against respondent No.1. 5. Mr. Mhaispurkar, the learned Advocate appearing for the petitioners, submits that assuming the School Tribunal was right in setting aside the enquiry, it ought to have directed that the WP/4433/2010 : 5 : respondent No.1 should be placed under suspension instead of reinstating him. He submits that though the petitioners may not challenge the findings of the School Tribunal that the enquiry was held in violation of the principles of natural justice, the order directing reinstatement while permitting the petitioners to hold a fresh enquiry was contrary to the judgment of the Supreme Court in the case of Vidya Vikas Mandal & Anr. vs. Education Officer & Anr., reported in 2007 (3) Mh.L.J. 801 . According to him, while setting aside the enquiry, the School Tribunal has not followed the directions of the Supreme Court contained in the aforesaid case. He urges that by directing the petitioners to pay salary to the respondent No.1 from the date he was terminated from service till his reinstatement and even thereafter while the enquiry was pending, the Tribunal has committed an illegality. He submits that, as held in the aforesaid case, the School Tribunal ought to have directed the petitioner- Management to hold a fresh enquiry and to treat respondent No.1 under suspension, entitling him to WP/4433/2010 : 6 : subsistence allowance with effect from the date of termination of his service. He submits that similar directions have been issued by the Supreme Court time and again when it has found that an enquiry has not been properly held by the Management against a workman. He placed reliance on the judgments of the Supreme Court in the cases of State of Punjab & Ors. vs. Dr. Harbhajan Singh Greasy, reported in (2005) 8 SCC 264 , U.P. State Textile Corporation Ltd. vs. P.C. Chaturvedi & Ors., reported in (2005) 8 SCC 211 and Managing Director, ECIL, Hyderabad & Ors. vs. B. Karunakar & Ors., reported in (1993) 4 SCC 727 . According to the learned Advocate, the Supreme Court in all these judgments while setting aside the enquiry and remanding the matter to the enquiry Committee / Officer has directed that the workman / employee should be placed under suspension. He submits that the Supreme Court has frowned on directions being issued to reinstate the employee concerned during the pendency of a fresh enquiry. Mr. Mhaispurkar then submits that the subordinate Courts are bound WP/4433/2010 : 7 : to follow the decisions of the Supreme Court in view of the provisions of Article 141 of the Constitution of India. 6. On the other hand, Mr. Langote, the learned Advocate appearing for respondent No.1, submits that once an enquiry is set aside, the consequences are that the order of termination which was passed pursuant to the findings of the Enquiry Committee must also be set aside. He urges that the employee must therefore be reinstated in service thereafter. According to him, in the present case the respondent No.1 was not under suspension while the enquiry was being held against him and, therefore, he cannot be placed in a worse position by placing him under suspension once the enquiry has been set aside by the School Tribunal. The learned Advocate submits that the consequences of an invalid or illegal enquiry are that an employee will be entitled to be reinstated with continuity of service and to be paid full back wages. WP/4433/2010 : 8 : 7. In the case of Managing Director, ECIL, Hyderabad (supra), the Constitution Bench of the Supreme Court was considering whether the report of an Enquiry Officer or Authority, appointed by the Disciplinary Authority to hold an enquiry into charges against a delinquent employee, is required to be furnished to the employee. The Court examined whether by adopting such a course it would enable the employee to make a proper representation to the Disciplinary Authority before it arrives at its conclusion with regard to his guilt or otherwise and the punishment, if any, to be imposed on him. The Court has held as follows :- “31.Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non- supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and WP/4433/2010 : 9 : the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. 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 enquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement 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 outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the WP/4433/2010 : 10 : authority should be at liberty to decide according to 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 enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh enquiry is held. That will also be the correct position in law (emphasis supplied).” 8. The same view has been reiterated in the case of State of Punjab & Ors. (supra) and in the case of U.P. Textile Corporation Ltd. (supra). In the case of Vidya Vikas Mandal and Anr. (supra), the Supreme Court was dealing with a matter arising out of the provisions of the MEPS Act and the Rules framed thereunder. The School Tribunal had allowed the Appeal filed by the employee on the ground that two or the three members of the Enquiry Committee had exonerated the delinquent employee despite which he was terminated from service. The School Tribunal, therefore, directed that the employee should be reinstated with continuity of service and full back-wages. The High Court dismissed the Writ WP/4433/2010 : 11 : Petition filed by the Management of the Institution. The Letters Patent Appeal met with the same finding. The Supreme Court observed that Rule 37(6) of the MEPS Act is mandatory and must be strictly complied. The Court observed that the enquiry report must be submitted within the time stipulated in Rule 37(6) of the MEPS Act by all the members of the Enquiry Committee. Since the report was not submitted in compliance with the aforesaid Rule by all three members, whether consenting or otherwise, the Supreme Court set aside the enquiry as also the judgments of the School Tribunal, the learned Single Judge and the Division Bench of this Court. The Court then directed the Management of the School to hold a fresh enquiry after constituting an Enquiry Committee in accordance with the MEPS Rules. It further directed that the delinquent employee should be treated under suspension and that he should be paid subsistence allowance as per the rules with effect from the date of his termination from service. The Court further directed that the enquiry should be WP/4433/2010 : 12 : completed within a period of six months from the date of the constitution of the enquiry Committee. 9. After considering the aforesaid judgments, it must be noted that the Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra) was essentially dealing with a situation where the enquiry officer’s report was not furnished to the delinquent employee in the disciplinary proceedings. It is in these circumstances that the Court directed that the enquiry should be continued from the stage when the illegality crept into the enquiry proceedings. The Supreme Court also held that the Court / Tribunal should not mechanically set aside the order of punishment on the ground that the report of the enquiry officer was not supplied. 10. In the present case, it must be borne in mind that the enquiry has been set aside since the procedure adopted by the Enquiry Committee was violative of the principles of natural justice as WP/4433/2010 : 13 : well as Rule 37 of the MEPS Act. Thus, from the very inception itself, the enquiry was vitiated. Admittedly the employee in the instant case was not under suspension when the enquiry was held against him. It must also be borne in mind that the Tribunal is a creature of the Statute. The powers of the Tribunal are circumscribed by the provisions of Section 11 of the MEPS Act which read as under :- “11.Powers of Tribunal to give appropriate reliefs and directions : (1). On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal. (2). Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions WP/4433/2010 : 14 : of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management, - (a).to reinstate the employee on the same post or on a lower post as it may specify; (b).to restore the employee to the rank which he held before reduction or to any lower rank as it may specify; (c).to give arrears of emoluments to the employee for such period as it may specify; (d).to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be; (e).where it is decided not to reinstate the employee or in any other appropriate case, [to give to the employee twelve months salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months salary (pay and allowances, if any) if he has been in service of the school for less than ten years], by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; WP/4433/2010 : 15 : or (f).to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case. (3). It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employees any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable or that may become due and payable in future, to the Management and be paid to the employee direct. (4). Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management.” 11. It is now well settled that a Tribunal which is appointed under a Statute cannot traverse beyond the powers conferred upon it under the Statute. The only powers that the School Tribunal can exercise are contained in Section 11 of the MEPS Act. Any directions given by the Tribunal beyond the scope WP/4433/2010 : 16 : of the powers conferred under Section 11 of the MEPS Act would mean that the Tribunal has acted in excess of the jurisdiction conferred upon it. Therefore, in my view, the School Tribunal, Pune, cannot be faulted for directing reinstatement of the employee. Had the respondent No.1 been under suspension while the enquiry had proceeded against him, it may have been possible to accept the submission of Mr. Mhaispurkar that while setting aside the enquiry, the School Tribunal should have restored status-quo ante. The delinquent employee could then have been continued under suspension. However, in the present case since the respondent No.1 was not placed under suspension when the enquiry was in progress, he cannot be placed in a position worse than what he was in prior to the dismissal order being passed. The directions of the School Tribunal, therefore cannot be faulted. 12. In the case of Managing Director, ECIL, Hyderabad (supra), the enquiry itself was not set aside but the Apex Court directed that the enquiry WP/4433/2010 : 17 : should proceed from the stage from which it was vitiated i.e. from the moment when the enquiry report was not furnished to the delinquent employee. 13. To construe the powers of the Tribunal under Section 11 of the MEPS Act in any other way would mean that this Court would confer the Tribunal with the power or jurisdiction that it does not have under the Statute. 14. In the case of Vidya Vikas Mandal & Anr. (supra), the employee was not suspended during the progress of the earlier enquiry. However on setting aside the enquiry the Supreme Court directed that the employee should be placed under suspension. The directions of the Supreme Court contained in this judgment have obviously been passed in exercise of its jurisdiction under Article 136 of the Constitution of India. The Judgment does not in any manner state that the Tribunal could have directed suspension of the delinquent employee. Therefore, WP/4433/2010 : 18 : the submission of Mr. Mhaispurkar cannot be accepted. In my opinion, the order of the School Tribunal cannot be faulted. 15. However, while considering the submissions on behalf of the petitioners under Article 227 of the Constitution of India, it may not be beyond the purview of this Court to pass certain directions while disposing of the Writ Petition. In these circumstances, in my view, it would be appropriate to dispose of the Writ Petition as follows : (i). The petitioners will reinstate the respondent No.1 notionally with continuity of service immediately. (ii). The petitioners are at liberty to issue an order of suspension pending a fresh enquiry. If such an order is passed, the petitioners shall pay subsistence allowance in accordance with the MEPS Act and Rules framed thereunder. (iii).The petitioners are at liberty to hold a fresh enquiry after WP/4433/2010 : 19 : constituting an Enquiry Committee in accordance with the MEPS Rules. (iv). In case the respondent No.1 is exonerated of the charges in the fresh enquiry, the petitioners shall pay the back-wages as awarded by the School Tribunal in the impugned order within a month of the completion of the enquiry. (v). If respondent No.1 is found guilty of the misconduct allegedly committed by him, the petitioner- Management will decide whether the back-wages should be paid to him as awarded by the School Tribunal, Pune. 16. The Writ Petition is disposed of in the above terms.