1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4011 OF 2009 Vijay Krishna Yadav .. Petitioner Vs Dr. B.R. Ambedkar Educational Foundation Through the President and Ors .. Respondents Mr. Mihir Desai for the petitioner Ms. A.D. Vadkar, AGP for State Mr. Kishor Shetty for respondent nos. 1 and 2 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 14th October, 2009 P.C.: 1. Heard the learned counsel for the petitioner - original appellant, learned counsel for respondent nos. 1 and 2 - Educational Institutions and the learned AGP for the state. 2. The petitioner was appointed as an assistant teacher in respondent school on 15th June, 1989. The case of the petitioner is that in August, 2005, he was forced to write a resignation letter. Thereafter he was not allowed to sign the muster. According to the petitioner, this amounted to "otherwise termination", hence he RMA wp-4011-09.sxw 2 filed Appeal No. 68 of 2007 before the School Tribunal against his illegal termination. During pendency of the appeal, the petitioner preferred an application for leading oral evidence. By order dated 21st January, 2009, the School Tribunal rejected the said application. Hence this petition. 3. According to the petitioner, the reason for preferring the application for leading oral evidence was that he was not terminated from service after inquiry but he was forced to give his resignation. In order to establish this fact that he was forced to give his resignation, it would be necessary for him to establish his case by leading oral evidence. . 4. The learned counsel for the petitioner submitted that as per Section 10 of the MEPS Act, the School Tribunal has the same powers as are vested in Appellate Court under the Code of Civil Procedure 1908 (CPC for short) and hence, the petitioner can be allowed to lead evidence before the School Tribunal. The learned counsel for the respondents submitted that additional evidence can be led before the Tribunal but only in four contingencies mentioned in Order 41, Rule 27 of CPC and he submitted that the case of the RMA wp-4011-09.sxw 3 petitioner does not fall under any of these provisions, hence the petitioner cannot be allowed to lead evidence before the School Tribunal. He further submitted that "as no evidence has been led earlier, there is no question of leading any "additional" evidence. 5. The question thus arises, "whether the appellant can be allowed to lead evidence before the School Tribunal?" 6. The appeal has been preferred by the petitioner before the School Tribunal under Section 10 of the MEPC Act. Hence, the issue needs to be considered on the touch stone of section 10 of the MEPS Act, which lays down that for the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in the Appellate Court under CPC. Thus, it would be necessary to refer to the relevant provisions of Section 107 and Order 41, Rule 27 of the CPC which deal with the powers of the appellate Court. The relevant provisions read as under :- "107. Powers of Appellate Court : 1. Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power - a. to determine a case finally; b. to remand a case; RMA wp-4011-09.sxw 4 c. to frame issues and refer them for trial; d. to take additional evidence or to require such evidence to be taken. 2. Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein." Order 41, Rule 27 of CPC:- 1. The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or b) the Appellate Court requires any document to be produced, or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document RMA wp-4011-09.sxw 5 to be produced, or witness to be examined. 2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 7. Perusal of the provisions of Section 10 and 11 of the MEPS Act shows that the Tribunal has been conferred with the powers of the Appellate Court under the Code of Civil Procedure for the purpose of admission, hearing and disposal of the appeals. Perusal of these provisions of MEPS Act shows that the Act has provided right of appeal and in appeal, normally, the concept is that the Appellate Authority has all powers of the original authority subject to statutory limitations. The legislature has constituted School Tribunal which is presided over by a person who is a judicial official not lower than rank of a Civil Judge. The legislature has also conferred upon the School Tribunal the powers of the Appellate Authority under CPC for the purposes of admission, hearing and disposal of the appeals before it. Thus, it is clear that when the legislature expressly confers power, grant of that statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant of power effective. RMA wp-4011-09.sxw 6 8. The parties would have right to lead evidence in a case where there is no inquiry or defective inquiry. The present case, in my opinion would fall in the second category that is of "no inquiry". It would be too wide a proposition to lay down that orders of dismissal, removal etc would take place only after inquiry. There may be many cases visualized where a person may be removed from service or terminated from service without holding inquiry. Take a case where an employee is appointed for a fixed period. After expiry of the said period the services automatically come to an end and the Management need not necessarily hold an inquiry. Take another case where a contract of service provides that an employee shall not remain absent at any point of time. The employee remains absent and consequently an order of termination is made. Looking to the contract, order of termination may appear to be valid and no inquiry whatsoever on these admitted facts may be necessary and may not be held. Thus, there are many cases which can be visualized where a person can be terminated, dismissed or removed from service without holding any inquiry. So also, the petitioner has been removed from service without holding inquiry, RMA wp-4011-09.sxw 7 hence it can be held to be a case of "No inquiry". Therefore, every order of dismissal, removal etc. need not be preceded by an inquiry. It can be a simpliciter termination without any inquiry yet such an order can be challenged by way of an appeal to the Tribunal. Taking into account the various situations and in view of the wide powers conferred upon the Tribunal in my opinion the appeal filed against an order passed by the Management is nothing but a plaint challenging the order on various grounds. Merely because under Section 10, an Appeal is provided and as such the School Tribunal is an Appellate Court, it cannot be construed to mean that it has no powers at all to record evidence. The nomenclature would not be a decisive factor in determining the jurisdiction and the powers of the Tribunal. The expression Tribunal is used equivalent to an Appellate Court because there is always an order of management which is sought to be challenged before the School Tribunal and, therefore, it is in that sense "an Appellate Court" 9. Needless to mention that a statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of the statute take their colour from the RMA wp-4011-09.sxw 8 reason for it. If judicial recognition is given to the right of management to inflict major penalties against their permanent employee without holding inquiry, the possibility of rampant misuse of such recognition by the school managements, who have enormous money power, cannot be ruled out. The School managements can afford to take a risk of dismissing their employees without holding inquiry at the cost of finances of the school to satisfy their own ego; and may not mind spending money to fight out frivolous and untenable litigation in the courts for years together since everybody knows that once the matter goes to court, it may take years to get a final decision. In this legal battle, poor employees would always be at the receiving end. It would take away the right of the employee to claim security and stability of service for which the Act has been enacted. The very purpose of the Act and Rules framed thereunder would stand defeated. Hence, it is always open to the Tribunal to exercise its powers in the peculiar facts and circumstances of each case as it deems just and necessary in the interest of justice. The School Tribunal is not powerless to permit the teacher to lead evidence to prove his case. RMA wp-4011-09.sxw 9 This legal sanction in law is implicit in sub-rule(b) of Rule 27 of Order 41 of CPC which states "... 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. Therefore, such power is available for being exercised in exceptional cases and in compelling circumstances. Thus, in case where an employee is dismissed from services without inquiry and there are exceptional circumstances or compelling contingencies like the present case, the Tribunal would have the power to allow the parties to lead evidence. In the given facts and circumstances of the case, it would not be possible for the petitioner to prove his case without leading evidence. In order to do complete justice between the parties, it would be necessary for the Tribunal to record evidence to find out the truth. In this view of the matter, the order of the Tribunal dated 21st January, 2009 is set aside and the petitioner is allowed to lead evidence before the Tribunal. 10.The parties to appear before the School Tribunal on 23rd November, 2009. 11.Rule made absolute in terms of prayer clauses (a) and (b). RMA wp-4011-09.sxw 10 12.At this stage, the learned counsel for the respondent nos. 1 and 2 prays that the order may be stayed for sometime as he wishes to challenge this order. In view of the prayer, this order is stayed upto 21st November, 2009. (SMT. V.K. TAHILRAMANI, J) RMA wp-4011-09.sxw