1 wp-2024-97-judgment.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2024 OF 1997 Shri Vilas Shriniwas Ghalshashi ] residing at Malgaon Road, ] Indiranagar Corner, Miraj, District Sangli ] .. Petitioner. V/s. 1 Shri Anilbhau R. Kulkarni ] The Chairman, Miraj Vidya Samati ] Miraj, District Sangli ] 2 Shri M.S.Mali ] Presiding Officer, School Tribunal ] Kolhapur Region, Kolhapur ] 3 Indian Audit and Accounts Department ] Office of the Accountant General (A&E) ] I, Maharashtra, 101, M.K.Road, ] Mumbai 400 020. ] .. Respondents. Mr. M.S.Topkar, for the Petitioner. Mr. Amol Deshpande i/b. Mr. P.D.Pise, for Respondent No.1. Mr. S.N.Bhosale, A.G.P. for Respondent-State. CORAM : K.K.TATED, J. RESERVED ON : 24th MARCH, 2011 PRONOUNCED ON : 21st APRIL, 2011. JUDGMENT:- 1 Heard learned counsel for the parties. 2 wp-2024-97-judgment.sxw 2 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner/Original Applicant challenges the order dated 1st October, 1996 passed by the Learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur in Appeal No.100 of 1995, partly allowing the Petitioner’s petition to the extent of passing of order of his reinstatement as Assistant Teacher by setting aside the dismissal order, but directing that he should be compulsorily retired with effect from 31st December, 1996. 3 The few facts of the matter are as under:- (a) The Petitioner was working with Respondent No.2 School since 1st June, 1992 as an Assistant Teacher. During the tenure as an Assistant Teacher, Respondent School issued show cause notice dated 28th April, 1994 in respect of misconduct committed by him by writing answer papers of his son namely Vinayak V. Ghalsashi in his annual examination. Thereafter, another show cause notice was issued on 6th May, 1994 regarding remaining absent from the school without prior intimation and third show cause notice issued on 24th May, 1996 in respect of misconduct and illegal act of writing the answer paper of his son. The Petitioner admitted his mistake in writing examination answer paper of his son and tendered his apology by letter dated 30th May, 1994. He also explained show cause notice dated 6th May, 1994. 3 wp-2024-97-judgment.sxw Considering the explanation given by the Petitioner, the Respondent School took decision to issue charge sheet to the Petitioner and as per the said decision, Respondent-School issued charge sheet to the Petitioner. The three charges are as under:- 1 As per regulation 1989 rule 28(5C) you are always behaving negligently in your responsibilities. In this respect you have acted negligent intentionally in your behaviour as mentioned below:- (a) It is observed that during the day to day routine hours of the school without taking prior permission of the Principal by leaving your work (of teaching in the class) from time to time you go out of the school. In this respect from time to time you are personally warned. Even than as you have continued this negligence on 8/1/94 you are given written- warning. (b) On 6/5/94 even though it was necessary for you to remain present in the school without taking prior permission of the school or without sanctioning the leave application remain absent in the school. In this respect you are given written warning. 2 As per regulation 1989-Rule 28(5D) your incapability is proved regarding which details are as below:- (a) In spite of concession given by the state to you to complete B.Ed educational qualification till 30/6/1994 till this date you have not obtained B.Ed. Qualification. In this respect you did not make sincere efforts; on the other hand you neglected this aspect. In reference to this in spite of giving you directions personally you have not obeyed the same and by doing non tolerable negligence you have created difficulties in the periodical work of the school. 4 wp-2024-97-judgment.sxw 3 As per State Regulation 1989-28(5A) it is observed that you have committed serious misconduct. Your this serious misconduct is as follows:- “During the annual examinations (Dr.12,13,15 & 16 April, 1994) of your son chi. V.V.Ghalsashi (who in the year 1993-94 was studying in std. 4B in Bharat Bhushan Vidyalay) you by unauthorizedly going in the examination hall and by cheating the supervisor/Teacher of that hall present at that time, you sent him out of the class and in order to anyhow pass your son in the exams you personally in presence of all students of the class by writing his answer papers committed a unpardonable and serious misconduct. This illegal act came in light on 16/4/94 so on enquiry in this respect it was observed that you personally have committed this misconduct due to which the good reputation of the school and institution is shattered.” After following due process of law and holding enquiry, Respondent-School issued termination letter dated 9th June, 1995 to the Petitioner. In the said termination letter, it was stated that Petitioner's services were terminated with effect from 12th June, 1995. 4 Being aggrieved by the said termination letter dated 9th June, 1995, Petitioner preferred Appeal bearing no.100 of 1995 before the Hon’ble Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur under section 9(1) of the Maharashtra Employees of Private Schools (conditions of service) Regulations Act, 1977 (herein after referred to as “the said Act of 1977”) on several grounds. The said 5 wp-2024-97-judgment.sxw appeal was decided by the Learned Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur by impugned order dated 1st October, 1996 and partly allowed the same. Operative order of the said appeal reads as under:- 1 The appeal is hereby partly allowed. 2 The dismissal order dated 9/6/1995 is modified and dismissal set aside. 3 The appellant is hereby reinstated as an Asstt. Teacher by setting aside his dismissal, but he shall be compulsorily retired w.e.f. 31/12/1996 therefore the respondent management are directed to complete the papers of the appellant for fixation of pension, payment of gratuity & other admissible claims within the period of three months. 4 The report of compliance be submitted to this tribunal prior 31/1/1997. 5 No order as to cost. 5 Being aggrieved by the order passed by School Tribunal, Kolhapur Region, Kolhapur, Petitioner preferred present Writ Petition on following grounds:- (a) that the learned Judge of the School Tribunal has failed to consider that Respondent No.1 who has dismissed the Petitioner is himself the management representative in the enquiry and hence the 6 wp-2024-97-judgment.sxw basic principle of natural justice that one cannot be a Judge and Prosecutor at the same time is violated and as such the dismissal order is illegal and bad in law; (b) that the learned Judge of the School Tribunal failed to consider that the enquiry held by the Respondent-School was contrary to the provisions of M.E.P.S. Act; (c) that the learned Judge of the School Tribunal committed gross error of law in coming to the conclusion that the enquiry held was as per provisions of law, as it was clear from the enquiry papers submitted on record that Rule 36(3) of the M.E.P.S. Act was violated by not properly communicating the members nominated in the proposed enquiry; (d) The Respondent-Management failed to follow mandatory provision of Rule 37(4) of the M.E.P.S. Act by not giving any opportunity to offer further explanation within a period of 7 days after forwarding to the Petitioner, summary of proceedings and copies of statements recorded in the enquiry; 7 wp-2024-97-judgment.sxw (e) The learned School Tribunal failed to consider that no opportunity was given to the Petitioner to cross examine the witnesses on behalf of the Management; (f) The learned School Tribunal ought to have considered that no witnesses were examined by the Management as what the Management calls statements of witnesses were in the form of Written Memorandums and as such no statements were recorded in the presence of the Petitioner; (g) The learned School Tribunal ought to have come to the conclusion that misconduct against the Petitioner was not proved at all as the enquiry committee has also not arrived at conclusion that the Petitioner had written the answer papers of his son. 6 Heard learned counsel for the parties. 7 The learned counsel appearing on behalf of the Petitioner submits that the Tribunal failed to consider the grounds raised by him in his appeal memo filed under section 9(1) of the said Act of 1977. He submits that the Respondent-Management failed to follow the Rule 36 and 37 of M.E.P.S. Rules, at the time of holding enquiry. He further submits that as per Rule 36(1) of M.E.P.S. Act, Chief Executive Officer 8 wp-2024-97-judgment.sxw authorized by the Management has to communicate to the employee concerned by Registered Post Acknowledgment Due, the allegations and demand written explanation from him. In the instant case, the Head Master does not refer to (i) that he is the Chief Executive Officer (ii) that the Management had decided to issue charge sheet to the Petitioner and (iii)that he has been authorized by the Management to issue charge sheet. He submitted that the charge sheet communicated by Head Master is contrary to the prescribed Rules under M.E.P.S. Rules. There is, thus, breach of Mandatory Rule 36(1) of the M.E.P.S. Rules. In support of his submission he relied on the judgment in the matter of Shah Babu Education Society and another v/s. Presiding Officer and another reported in 2007 (Supp.) Bom.C.R.711, lays down that the C.E.O. should be authorized by the Management to perform the duties under Rule 36 and 37 of the M.E.P.S. Rules. 8 He further submits that the convener of the enquiry committee namely the Chairman of the Trust i.e. Respondent No.1 by his letter dated 2nd February, 1995 informed the Petitioner that his reply to the charge sheet is not satisfactory and the Management Committee has decided to conduct enquiry by appointing Enquiry Committee under Rule 36(2) of the M.E.P.S. Rules. It is also informed 9 wp-2024-97-judgment.sxw that the Chairman is already functioning as convener of the committee from 25th January, 1995 and the petitioner should intimate the name of his representative. He submits that this is in breach of Rule 36(3) of the M.E.P.S. Rules as the nominees of the committee members are to be communicated to an employee by the Chief Executive Officer. The names of convener and the said Award Winner Teacher are to be communicated and thereafter, employee has to be called upon to name his nominee. In support of his contentions, the learned counsel appearing on behalf of Petitioner relied on judgment in the matter of Shri Dnyaneshwar Samaj Prabodhan Sasnths v/s. Presiding Officer, School Tribunal and Others reported in 2008(Supp.) Bom.C.R. 857. He particularly relied on following parts of the judgment which reads thus:- “Having gone through the letter dated 10.10.1996 which was issued to respondent No.2 this Court finds that in the said letter there is a specific mention that on 7.10.1996 the Executive Committee had taken a decision to hold inquiry against respondent No.2 and he should furnish the name of his nominee within seven days and should also reply the charge-sheet enclosed with the said communication. In this communication, there is absolutely no mention about the names of the nominated representatives of the petitioner-Management on the Inquiry Committee. Had the names of nominee or members of Inquiry Committee been communicated by this communication, the respondent No.2 would have an opportunity to comment upon those names or object to the names or inclusion of any particular person. That was 10 wp-2024-97-judgment.sxw however, not done and, therefore, the Tribunal has correctly recorded a finding about violation of Rule 36(3) of the Rules, 1981.” 9 The learned counsel appearing on behalf of Petitioner further submits that the Respondent-Management provided the summary of enquiry as per Rules in which it was specifically stated that the Petitioner cross examined their witnesses. In fact, Petitioner never cross examined any witness and, therefore, the summary of enquiry provided by the Respondent-Management was incorrect and, therefore, the enquiry conduced by Respondent and subsequent termination order issued pursuant to the said enquiry is liable to be set aside. 10 On the basis of this submission, the learned counsel appearing on behalf of the Petitioner submits that the impugned order passed by the School Tribunal dated 1st October, 1996 is partly liable to be set aside to the extent of declaring Petitioner as compulsorily retired with effect from 31st December, 1996. 11 On the other hand, learned counsel appearing on behalf of Respondent-Management vehemently opposes the present Writ Petition. He submits that for deciding the present Petition, it is very much important to look into the conduct of the Petitioner while 11 wp-2024-97-judgment.sxw executing his duty. He submits that the Petitioner was negligent in executing his duties. The Petitioner was leaving the school without taking prior permission of the Head Master. He was never prompt in checking the answer papers of the students and most important thing was he wrote answer papers of his son. He submits that the letters dated 28.4.94, 6.5.94, 24.5.94 and 30.5.94, reveal that the Petitioner was very much negligent in performing his duties. In all these letters, the Respondent-Management from time to time intimated him the acts of his misbehavior in the school. 12 The learned counsel appearing on behalf of Respondent submits that there are no pleadings in the appeal memo before the School Tribunal or in the Writ Petition regarding the objection of Head Master being Chief Executive Officer and no opportunity was granted to the petitioner to appoint his nominee. Hence, in the absence of the pleadings, the Petitioner is not entitled to argue on the said points. He submits that the Head Master, being the Chief Executive Officer, issued charge sheet to the Petitioner and it was valid and legal. 13 He submits that the Head Master was authorized by the Management and hence, the question of authorization of the Head Master as Chief Executive Officer cannot be dealt with especially in the absence of the pleadings. The learned counsel appearing on 12 wp-2024-97-judgment.sxw behalf of Petitioner submits that they followed Rules of M.E.P.S.Act while conducting enquiry against the Petitioner. He submits that as per Rule 36(1), the Respondent-Management decided to hold enquiry and accordingly the Head Master being Chief Executive Officer has issued the charge sheet to the Petitioner on 5th January, 1995 and demanded his explanation within seven days. Therefore, there is compliance of Rule 36(1). As per Rule 36(2) the Head Master being Chief Executive Officer who after receiving explanation found it unsatisfactory and hence, by its letter dated 18th January, 1995 informed the Management and Management decided to hold enquiry against the Petitioner. The enquiry was against an employee. Hence, enquiry committee was constituted as per Rules i.e. Chairman of the Management who was authorized to act as Management representative and convener and Shri Shankar Nage who was award winner teacher, the Petitioner did not appoint his nominee though from time to time, he was granted time to appoint the same. As per Rule 36(3), by letter dated 2nd May, 1995, the Petitioner was directed to nominate some one on his behalf and by his letter dated 24th February, 1995, he prayed for extension of time to nominate his representative. Thereafter, time was extended till 11th March, 1995 but he failed to appoint his nominee even within the extended time. 13 wp-2024-97-judgment.sxw On 12th April, 1995, the Management informed the Petitioner that the enquiry committee of two members was constituted. Thereafter, the Petitioner appointed his nominee. Thus, the Respondents followed the procedure as prescribed by the Rules. 14 As per Rule 37(2) (a) & (f), Respondent followed proper procedure to conduct departmental enquiry. Each and every say or explanation of the Petitioner was taken on record. Management has examined seven witnesses and the copies of their Examination-in- Chief were given to the Petitioner. The Petitioner acknowledged the same. The enquiry committee has given full opportunity to the Petitioner to defend his case. Though the enquiry committee gave full opportunity to the Petitioner to cross examine Management witnesses, Petitioner declined to do so. This fact has been recorded in the proceedings of Enquiry Committee. Therefore, there is no question of denying any opportunity to defend to the Petitioner before the enquiry committee. 15 The learned counsel appearing on behalf of the Respondents submits that the enquiry committee specifically held that the Petitioner had written examination papers of his son and committed misconduct. If a teacher himself behaves in this fashion, then it is impossible for the school management to maintain good 14 wp-2024-97-judgment.sxw name of their school, because, the said incident was published in the news papers and it tarnishes the reputation of the school. He submitted that in view of this misconduct on the part of the Petitioner, the Petitioner is not entitled for any relief from this Court. He relied on the judgment in the matter of Thapar Education Society and another v/s. Shyam Maroti Bhasarkar and others reported in 1997(3) Mh.L.J., page - 709 The Division Bench of this Court in that judgment held :- “that the learned counsel then contended that the sentence of dismissal was more harsh as compared to the so-called misconduct on the part of the delinquent teachers. He pointed out that the teachers were discharged and as such it could not be said that the incident was proved or that the delinquent respondents had engaged themselves in any kind of misconduct. We have already given a finding that the proof required in a criminal proceeding cannot be compared with the standard of proof required in the domestic enquiries. The incident has undoubtedly taken place and it has been proved that these two teachers went to a girl’s house with a foul motive, took the girl without the permission of her parents. It has also come in the statements that the girl was mentally disturbed. In their statements before the police and the management, the delinquent teachers had tried to implicate each other and had gone to the extent of admitting that they had an intention to exploit the girl sexually. It has also come on record that on account of the wide publicity, there was a hue and cry in the otherwise cal and quiet life of students and their families to the extent that there were demonstrations against these teachers. The reputation of the school was badly damaged. Teachers are the pillars of the society. They are looked as models by the innocent students and if the teachers engage themselves in such 15 wp-2024-97-judgment.sxw kind of incidents which get wide publicity, the pure stream of education definitely gets polluted. When there is every effort to keep the students away from the allurements, if their teachers, whom they see as their models, get themselves involved in such nefarious activities, the law will view such activities with stern eyes. This is besides the jurisdictional aspect of this Court interfering in the punishment. In a domestic enquiry, we would be extremely slow to interfere with the quantum of punishment, unless there is an apparent injustice. We do not find any such apparent injustice in the present case.” 16 On the basis of these submissions, the learned counsel appearing on behalf of Respondent submits that there is no substance in the present Petition and the same is liable to be dismissed with costs. 17 Before considering the merits of the present case, it is to be noted that a teacher has to don the mantle of a lucid communicator, a fair evaluator, an adept manager, a strict disciplinarian, a healing therapist and a skillful team leader. Moreover, at times, a teacher also plays the role of a surrogate parent. Thus, a teacher should possess certain requisite qualities expected of him. This will help him to elicit the best from his students and enjoy a rewarding career too. A great thinker Alexander of Macedon states the exalted position of a teacher thus: “I am indebted to my father for living, but to my teacher for living well” 16 wp-2024-97-judgment.sxw The Characteristics of a Good Teacher may be stated thus:- . One of the most important attribute of a good teacher is to be a good communicator. He should be comfortable while explaining things and enjoy doing the same. . At times, a teacher might feel like yelling or shouting at students, but a good teacher is one who knows how to keep the temper in check and act calmly in such situations. . A good sense of humor is another great tool that helps a teacher to simplify his task. Wit and humor, when applied in the proper manner, can form an important part of a successful teaching program. . A good teacher must have good time management skills and always value the importance of time. In fact, wise utilization of time is the hallmark of a good teacher. . A teacher should always adopt a fair attitude when it comes to making any form of evaluations. He should be fair to his profession and assess students on their performance, instead of personal rapports and likings. . A good teacher should have the necessary command over the subject matter he teaches. This way, he can be comfortable while explaining things. Besides, he will be equipped with answers of any possible questions that might crop up during the lecture sessions. 17 wp-2024-97-judgment.sxw . A teacher should be dedicated towards his work. He should not kill his time in the classroom and wait for the school bell to ring. Instead, taking out time and engaging in after-school meetings and activities is what suits him. . A good teacher should be meticulous and have an eye for detail. In fact, a disorganized person would find the vocation unsuitable and unfulfilling. Well thought-out plans and programs for teaching will assist the productivity of a teacher. . A good teacher should be a good leader and a good friend. He should also be a disciplinarian and the students must look up to him. However, this should not stop him from acting like an ally under certain situations. 18 Keeping in mind those requirements and expectations from a teacher, from the proved facts in this case, it is necessary to consider whether the conduct of the petitioner was as expected of a teacher. In the present case, it is admitted fact that the Petitioner had written 4th Std. answer paper of his son in the examination hall itself. When the Respondent-Management issued show cause notice dated 20th April, 1994 to the Petitioner, Petitioner admitted those facts and tendered his unconditional apology. On reading his letter dated 30th May, 1994 being Ex.’A’, it is very clear that Petitioner admitted that he wrote the 18 wp-2024-97-judgment.sxw answer papers of his son in the examination hall. The said incident flashed in the news papers and it was bound to tarnish the good name of the school. It is the worst turpitude; such person cannot be allowed to be continued as teacher in any educational institution. Though, the learned counsel appearing on behalf of Petitioner made several submissions that the Respondent-Management failed to comply with the provisions of the M.E.P.S Act while conducting enquiry against the Petitioner, it is not necessary to enter into detailed discussion of each of them. From bare reading of the judgment of the Tribunal, it is crystal clear that the Respondent-Management conducted enquiry according to law and the rules of natural justice were followed and thereafter, the decision to terminate the Petitioner’s service was taken. Though the Petitioner relied on the judgments in the matters of Shah Babu Education Society (supra) and Shri Dnyaneshwar Samaj Probodhan Sanstha (supra) in support of his contention that Respondent-Management failed to follow the procedure prescribed under Rules 36 and 37 of M.E.P.S. Rules, I do not find any substance after going through the judgment passed by the Tribunal. In any case, under article 227 of the Constitution of India, it is neither possible nor necessary to reevaluate the evidence to ascertain the correctness of the facts found by the lower Courts as