:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5033 OF 1994 WRIT PETITION NO. 5033 OF 1994 WRIT PETITION NO. 5033 OF 1994 Nerkar Madhukar Jagannath ] Head Master ] Nagarpalika Madhyamik Tantrik ] Vidyalaya, Kopargaon, ] District : Ahmednagar ]..Petitioner versus 1. Kopargaon Municipal Council] Kopargaon, Dist: Ahmednagar ] (thru’ its Chief Officer) ] 2. The President, ] Kopargaon Municipal Council ] Kopargaon, Dist: Ahmednagar ] 3. Incharge Head Master ] Nagarpalika Madhyamik Tantrik ] Vidyalaya, Kopargaon, ] Dist: Ahmednagar ] 4. Shri Madhavrao K. Adhav ] Convenor, Nerkar Enquiry ] Committee, presently residing ] at Kopargaon, Dist: Ahmednagar ] 5. Shri Vilasrao B. Athare ] Member, Nerkar Enquiry Committee] at Kopergaon, Dist: Ahmednagar ] 6. The Addl. Commissioner ] Nasik Division, Nasik ]..Respondents Mr. P. N. Joshi for the Petitioner. Mr. N. A. Mulye i/b. Mr. G. S. Godbole for the Respondent Nos. 1 to 3. Mr. A. P. Vanarse, AGP for the Respondent No. 6. (As against Respondent No.5 W.P. stands dismissed as per the Addl. Registrar’s Order dt. 27.6.1996). :2: CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 2ND APRIL, 2009 DATE : 2ND APRIL, 2009 DATE : 2ND APRIL, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . The petitioner has challenged the order of an Additional Commissioner, Nashik Division, dismissing his Appeal under Section 79(6) of the Maharashtra Municipalities Act, 1965. The Additional Commissioner has held that the dismissal of the petitioner is in accordance with law. 2. The principal contention of the petitioner is that since he was working as a Teacher in a school known as Nagarpalika Madhyamik Tantrik Vidyalaya, Kopargaon, which was run by Kopargaon Municipal Council, the conditions of his services were governed by the provisions of Maharashtra Municipalities Act and therefore his dismissal which was effected without holding an enquiry and without taking prior approval of the Collector under the Maharashtra Municipalities Act, 1965, is illegal. 3. Admittedly, an enquiry has been held under the Maharashtra Employees of Private Schools :3: (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the "MEPS Act") read with Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as "the Rules") and the dismissal is the result of that enquiry. An enquiry was held under the MEPS Act since according to the respondents at the relevant time Secondary schools run by the Government or Local Authorities such as the respondent school in which the petitioner was employed were governed by the MEPS Act. 4. On 11.7.1986, a complaint was made against the petitioner by some Municipal Councils. The Chief Executive Officer of the Municipal Council called for an explanation from the petitioner. On receiving the petitioner’s reply on 8.7.1987, the Municipal Council decided to terminate the services of the petitioner straightway without taking any decision to hold an enquiry. A charge sheet was issued on 25.1.1989 by the Chief Executive Officer of the Municipal Council. However, no further action was taken on it. On 11.4.1989 the petitioner was suspended. An Enquiry Committee under Rule 36 of the MEPS Rules was constituted on 18.2.1989. The Enquiry Report was submitted on 19.7.1989. The :4: petitioner was dismissed on 25.7.1989. He filed a complaint under Section 9 of the MEPS Act before the School Tribunal. By reason of an amendment in the law, referred to in detail later, the Appeal was transferred to the Director of Education initially and then to the Commissioner. Eventually, the Commissioner dismissed the Appeal on 13.5.1994 against which the present petition is filed. 5. The question that falls for consideration is whether the action of the respondents in resorting to the provisions of MEPS Act in initiating disciplinary action against the petitioner and the enquiry report and the dismissal after the MEPS Act ceased to apply, is without jurisdiction and also illegal for want of compliance with the provisions of Maharashtra Municipalities Act, 1965. 6. Municipal Council Schools which are schools run by the Local Authorities were initially outside the purview of the MEPS Act, when it was enacted. This was in view of the definition of Private School in Section 2(20) of the MEPS Act, which reads as follows:- :5: "Private School" means a recognised school established or administered by a Management other than the Government or a local authority." The Maharashtra Legislature passed Maharashtra Act No. XXX of 1987 which received the assent of the Governor on 7.8.1987. By this Amending Act, the definition of Private School was broadened to include a school established or administered by the Local Authority, not being a Primary School. Section 2(c) which substitute clause 20 reads as follows: "(20). "private school" means - (a) a recognised school established or administered by a Management other than the Department; or (b) a recognised school, not being a primary school, established or administered by a local authority;" Thus schools run by the Local Authorities were governed by the MEPS Act with effect from 7.8.1987. This position continued till another amendment to the MEPS Act by Maharashtra Act No. XXIII of 1989 which received the assent of the Governor on 2.6.1989. This Act restored the original provision excluding Municipal Schools from the purview of the :6: MEPS Act with effect from 7.8.1987. Section 2 substituted sub section 20, which reads as follows:- "2. In section 2 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as "the principal Act"), for clause (20), the following clause shall be substituted, and shall be deemed to have been substituted, with effect from the 7th August 1987, namely :- (20) "private school" means a recognised school established or administered by a Management, other than the Government or a local authority;" Thus, on 2.6.1989 the definition of Private School with effect from 7.8.1987 excluded schools run by a Local Authority. Section 4 of this Act which provides for the consequences of retrospective amendment provides that any appeal filed by an employee of a local authority before 7.8.1987 shall be disposed of by the appellate authority competent to do so; and similar appeals, filed after 7.8.1987 before the School Tribunal shall be transferred to such competent authority for disposal as if clause 20 of section 2 of the Principal Act had been effective and continuously in force. Section 4 of the Amending Act XXIII of 1989 reads as follows: :7: "4. It is hereby declared that the provisions of clause (20) of section 2 of the principal Act having been retrospectively amended by section 2 of this Act, appeals, if any, filed by any employee of a local authority relating to any matters specified in clause (b) of section 9 before the 7th August 1987 shall be disposed of by the appellate authority competent to do so; and similar appeals, if any, filed by an employee of a local authority before the Tribunal on or after the 7th August 1987, shall be transferred to such competent authority as aforesaid for disposal, as if clause (20) of section 2 of the principal Act, as amended by this Act, had been effective and continuously in force." Section 4 which provides for the consequences as above, does not make any provision for the effect of the Amending Act on acts done under the law during the intervening period i.e. from 7.8.1987 to 2.6.1989. 7. The question now is whether the disciplinary action initiated by the respondents against the petitioner during this intervening period from 7.8.1987 to 2.6.1989 under the provisions of the MEPS Act, is valid. In this intervening period there is no doubt that the Municipal Schools were broadened by the provisions of MEPS Act by reason of enlarged definition of private schools by Maharashtra Act No. XXX of 1987, the first Amending Act. This enlarged definition was brought in force :8: from 7.8.1989. Therefore, the enquiry which was initiated on 18.2.1989 by constituting an Enquiry Committee under Rule 36 of the MEPS Rules, 1981, was under the MEPS Act. 8. Mr. Joshi, the learned counsel for the petitioner submitted that the enquiry must be taken to have commenced on 8.7.1987 when the MEPS Act was not applicable, when the Management decided to terminate the services of the petitioner. According to the learned counsel, this decision was taken upon application of mind to the cause shown by the petitioner. It is not possible to accept this contention since on 8.7.1987 the Management i.e. the respondents Municipal Council took no decision of any kind to hold an enquiry into the alleged misconduct of the petitioner. They simply decided to terminate his services without an enquiry. This cannot be therefore construed to be the commencement of an enquiry. Under the MEPS Rules, an enquiry must be taken to have commenced when the Management decides to hold an enquiry through a properly constituted Enquiry Committee as provided by Rule 36 and issues a charge sheet. In the present case the decision to hold an enquiry was taken on 18.2.1989 and charge sheet was issued on 25.1.1989. In Uco Uco Uco :9: Bank & Anr. vs. Rajinder Lal Capoor [(2007)6 SCC Bank & Anr. vs. Rajinder Lal Capoor [(2007)6 SCC Bank & Anr. vs. Rajinder Lal Capoor [(2007)6 SCC 694], 694], 694], in a similar situation, the Supreme Court referred to its decision in Coal India Ltd. vs. Saroj Kumar Mishra [(2007)9 SCC 625] where it was held as under: "....that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto." It is not necessary here to specify whether the precise date of commencement of enquiry was the decision to constitute the Enquiry Committee under the MEPS Act and the Rules or the issuance of the charge sheet since both dates fall during the period when the Municipal Schools were governed by MEPS Act. In any case, as observed earlier, it is clear that the decision to terminate the petitioner’s services on 8.7.1987 when the MEPS Act did not apply, cannot be construed to be a decision to commence an enquiry. Thus, the position that emerges is that the enquiry was commenced under the MEPS Act, during the period when the provisions of that Act applied to municipal schools in the State. :10: 9. Mr. Joshi, the learned counsel for the petitioner however submitted that even if the enquiry commenced during the period when Municipal Council Schools were governed by the MEPS Act such an enquiry ought to ceased and in fact abandoned in view of the enactment of Maharasthra Act No. XXIII of 1989 which removed the applicability of the MEPS Act to the Municipal School on 2.6.1989 retrospectively with effect from 7.8.1987. On the other hand, according to the learned counsel the respondents could not have completed the enquiry and dismissed the petitioner after the repeal. According to the learned counsel, the Legislature has repealed the provision enlarging the scope of the private schools to include the municipal school with effect from 7.8.1987 so completely that it must be taken that municipal schools were never governed by the MEPS Act. According to Mr. Joshi Section 4 (supra) the said Amending Act XXIII of 1989 gives an indication of the intention of the Legislature to give effect to the amendment removing the Municipal Schools from the purview so completely as if the original Act had been effective and continuous in force. This according to the learned counsel shows the intention of the legislature to terminate and omit all actions taken under the repealed law. The :11: learned counsel further submitted that there is no scope for applicability of Section 7 of The Bombay General Clauses Act, 1904, which provides for the effect of repeal and save certain acts because legislature has expressed its intention to omit the enlarged definition completely and as if it was never enlarged. 10. Mr. N. A. Mulye, the learned counsel for the respondent Nos. 1 to 3 submitted that the act of the respondents in not holding an enquiry under the MEPS Act is perfectly legal and justified and in fact even mandated by law. The enquiry having been held there is nothing in the Repealing Act which can be construed to take away its effect. The respondents were therefore entitled to continue the enquiry and act thereon even after the school ceased to be governed by the MEPS Act. The learned counsel relied on a decision of the Supreme Court in Hasan Hasan Hasan Nurani Malak vs. S. M. Ismail, Asstt. Charity Nurani Malak vs. S. M. Ismail, Asstt. Charity Nurani Malak vs. S. M. Ismail, Asstt. Charity Commissioner [AIR 1967 SC 1742] Commissioner [AIR 1967 SC 1742] Commissioner [AIR 1967 SC 1742] for the proposition that the enquiry, which is a thing done under the repealed enactment is saved by reason of Section 7 of The Bombay General Clauses Act, 1904. 11. It is therefore necessary to construe the :12: position and status of the enquiry in law. Undoubtedly, the enquiry was commenced by the municipal school when such schools were governed by the MEPS Act by reason of the first Amending Act i.e. Act XXX of 1987 which enlarged the definition of a private school to include a school run by a Local Authority. This enlarged definition continued to be in force till 2.6.1989 when by Amending Act No. XXIII of 1989 the original position was restored and municipal school ceased to be covered by the MEPS Act with effect from 7.8.1987. Thus the enquiry was validly instituted. The question is as to the validity of its continuation beyond the date the MEPS Act ceased to apply to Municipal Schools. In such a situation there is no option but to construe the effect of repeal in accordance with the provisions of repealing act or if there is no such provision, in accordance with the provisions of The Bombay General Clauses Act in its application to the State of Maharashtra. Sections 2 and 4 of Amending Act No. XXIII of 1989 which restores the original position do not express any intention of the legislature to save or nullify for the legal status of things done under the amended law. No doubt, section 2 of the Amended Act substitutes the definition of private school with effect from :13: 7.8.1987 so that with effect from that date it must be taken that "private school" does not, and did not, include a school administered by a Local Authority. Section 4 of the Amended Act does provide for appeals which have been filed after 7.8.1987 before the School Tribunal and directs it be transferred to a Competent Authority as provided. However, none of these provisions declare the legal effect of a thing done under the repealed enactment. It is therefore necessary to resort to the well established method of applying the General Rule of Construction provided of The Bombay General Clauses Act, 1904. Section 7 of The Bombay General Clauses Act, 1904, reads as follows: "7. Effect of repeal.- Effect of repeal.- Effect of repeal.- Where this Act, or any Bombay Act [or Maharashtra Act], made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation of liability acquired, accrued or incurred under any enactment so repealed; or :14: (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed." Two clauses above, viz. (b) and (e) are clear indication that the repeal of an enactment would not affect anything duly done under the repealed enactment vide clause (b) above, including an investigation, legal proceedings, remedy etc., vide clause (e) above. The enquiry which was commenced under that Act when the MEPS Act applied was undoubtedly something which was duly done under the repealed enactment. 12. Mr. Mulye, the learned counsel submitted that an enquiry is also an investigation and therefore must be considered as having been instituted, continued or enforced as if the repealing act had not been passed vide (e) above. :15: It is true that an enquiry is an investigation which must be taken to have continued as if the repealing act had not been passed vide clause (e) above. Moreover an enquiry is certainly a thing done under the repealed law vide clause (b) above. In a similar situation the Supreme Court in Hasan Nurani’s case (supra) observed as follows:- "The words "anything duly done" in sub-clause (a) are very often used by the legislature in saving clauses such as we have in Section 86(3). Section 6 of the General Clauses Act, 1897 also provides that unless a different intention appears the repeal of an Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the thing done before a particular date from which the repeal of such a pre-existing law takes effect. In Universal Imports Agency v. Chief Controller construing the words "things done" used in para 6 of the French Establishments (Application of Laws) Order, 1954, this Court held that on a proper interpretation the expression "things done" was comprehensive enough to take in not only the things done but also the effect of the legal consequences flowing therefrom. The inquiry held by the Registrar under the M.P. Act was indisputably "a thing duly done" under the Act. The inquiry and its result having been saved by Section 36(3)(a) they continue to be governed by the M.P. Act in spite of its ceasing to apply in Vidarbha." It must therefore be held that the enquiry commenced :16: by the respondents under the MEPS Act was a "thing done" under that Act and this phrase is comprehensive enough to taken in not only the things done "but also the legal effect flowing therefrom" as observed by the Supreme Court. Thus, it must be held that the enquiry was properly instituted and concluded and acted thereon under the provisions of MEPS Act which alone applied to municipal schools during the period from 7.8.1987 to 2.6.1989. It was fairly accepted on behalf of the petitioner that if the MEPS Act is held to apply then the conditions of service of the petitioner cannot be said to have been governed also by the Maharashtra Municipalities Act simultaneously. In these circumstances it was not incumbent for the respondents to take a prior approval of the Collector before dismissing the petitioner. 13. It may be noted that Mr. Joshi, the learned counsel for the petitioner relied on the judgment of the Supreme Court in Kolhapur Canesugar Works Kolhapur Canesugar Works Kolhapur Canesugar Works Limited vs. Union of India [ 2000(2) SCC 536 ] Limited vs. Union of India [ 2000(2) SCC 536 ] Limited vs. Union of India [ 2000(2) SCC 536 ] for the proposition that Section 6 of The General Clauses Act, which deals with effect of repeal would have no application where there is a repeal of enactment. It is however not possible to apply the :17: ratio of the decision to the present case. The Supreme Court has not held that General Clauses Act would have no application generally in cases of repeal. Their Lordships have laid down that Section 6 of The General Clauses Act which deals with the effect of repeal would have no application where what is repealed is only a "Rule" and not a "Central Act" or "Regulation". Section 6 in terms provide that certain acts will be saved "as if the repealing act or regulation" had not been passed. It was therefore held that Section 6 would have no application where the enactment that is repealed is a rule which is neither a regulation nor an act. 14. On the merits of the matter, there is no reason to interfere with the decision of the Additional Commissioner who has held that the rules of natural justice have been complied with fully by the respondents and adequate opportunities have been given. Nothing to the contrary has been pointed out on behalf of the petitioner. 15. There is thus no merit in this petition, which is hereby dismissed. :18: (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)