[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.403 OF 2008 IN WRIT PETITION NO.236 OF 2008 WITH C.A.NO.365 OF 2008 Bhavika Vidyaprasarak Mandal and Ors. ..Appellants Vs. Mrs.Rekha Hemant Khairnar and Ors. ..Respondents WITH LETTERS PATENT APPEAL NO.404 of 2008 IN WRIT PETITION NO.9156 OF 2007 WITH C.A.NO.366 OF 2008 Bhavika Vidyaprasarak Mandal and Ors. ..Appellants Vs. Sou.Malati Mahendra Belose and Ors. ..Respondents WITH LETTERS PATENT APPEAL NO.405 of 2008 IN WRIT PETITION NO.9157 OF 2007 WITH C.A.NO.367 OF 2008 Bhavika Vidyaprasarak Mandal and Ors. ..Appellants Vs. Sou.Vijaya Manohar Pate and Ors. ..Respondents WITH LETTERS PATENT APPEAL NO.406 of 2008 IN WRIT PETITION NO.8861 OF 2007 WITH C.A.NO.368 OF 2008 Bhavika Vidyaprasarak Mandal and Ors. ..Appellants Vs. Mr.Nandkumar Mahadeo Dengane and Ors. ..Respondents WITH LETTERS PATENT APPEAL NO.407 of 2008 IN WRIT PETITION NO.713 OF 2008 [-2-] WITH C.A.NO.369 OF 2008 Bhavika Vidyaprasarak Mandal and Ors. ..Appellants Vs. Mrs.Shobha Sunil Deshmukh and Ors. ..Respondents .... Dilip Bodke for Appellants M.V.Limaye for Respondent No.1 in LPA Nos.403 of 2008 and 407 of 2008 Mihir Desai for Respondent No.1 in LPA Nos. 404 of 2008 and 405 of 2008 N.R.Bubna for Respondent No.1 in LPA No.406 of 2008 S.K.Chinchalikar for Respondent-State .... CORAM: J.N.PATEL AND CORAM: J.N.PATEL AND CORAM: J.N.PATEL AND SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. DATE : FEBRUARY 27, 2009 DATE : FEBRUARY 27, 2009 DATE : FEBRUARY 27, 2009 P.C. P.C. P.C. 1. Heard the learned counsel for the parties. 2. These Letters Patent Appeals are directed against the judgment and orders dated 8.4.2008 passed by the learned Single Judge in Writ Petition Nos.236 of 2008, 9156 of 2007, 9157 of 2007, 8861 of 2007 and 713 of 2008 setting aside the orders of the School Tribunal. The School Tribunal rejected the appeals filed by Respondent Teachers who had been dismissed. The learned Single Judge set aside orders of the dismissal of the Respondents-teachers [-3-] and directions were issued that they should be reinstated in service and further consequential directions were issued. 3. The Respondents who are School teachers, came to be dismissed by way of punishment. These orders arose from incidents relating to distribution of leaflets in the School premises and relay fast on 15/16.5.2006 held in the premises of Zilla Parishad Office, in which some of the teachers had participated. 4. All the Respondents were confirmed teachers. In March, 2004, the School became fully aided. The teachers alleged that from May 2005 to September 2005, the appellants did not pay their salary as per the Rules. Some teachers came to be removed from service. All these incidents became a cause for unrest among the teachers. On 27.4.2006, the teachers addressed a letter to the Secretary of Education and Sports Department and prayed for intervention so as to take over the management of the School. This was followed by a notice dated 29.4.2006 by the teachers informing about their determination to resort to relay fast infront of [-4-] the Zilla Parishad Office. 5. Thereafter on 27.5.2006, some of teachers were issued show cause notice regarding distribution of leaflets by them and participating in relay fast on 16.5.2006. In reply to the show cause notice, it was pointed out that these teachers were not connected with printing or distribution of leaflets, however, they admitted that they had participated in the relay fast held on 15/16.5.2006 as a mark of their protest against the mis-management of the School. A detail charge sheet was issued against them on 21.7.2006. Thereafter, orders of dismissal came to be issued which were challenged in appeal before the School Tribunal. 6. It may be stated here that the Tribunal held that inquiry report was in violation of Rule 37(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as "MEPS Rules") however, the Tribunal held that there was no necessity to remand the matter back to the management to conduct a fresh enquiry as two major charges i.e. distribution of [-5-] leaflets making anti management propaganda and participation in relay fast were admitted and when charges were admitted, there was no necessity to conduct departmental inquiry. In this view of matter the fact, Tribunal held that the teachers were guilty of misconduct as above, including by resorting to so called "hunger strike" infront of office of Zilla Parishad. 7. The observation of the School Tribunal that the respondents-teachers had resorted to "hunger strike" is clearly erroneous. The teachers had not resorted to any "hunger strike" but they had only participated in a relay fast as a mark of their protest against the mis-management of the School. Even as per the Appellants, the strike is said to have taken place on 15/16.5.2006 when the school was closed for summer vacation. It is seen that summer vacation of the School had commenced from 2.5.2006. 8. The learned counsel for the Appellants stated that there is a clear misconduct on the part of the respondents-teachers which is admitted by them in their Writ Petition at paragraphs 2 and 5 wherein [-6-] it is stated that the Petitioners had no alternative but to go on hunger strike for their legitimate demands and for bringing the harassment to an end. He submitted that despite this admission on the part of the teachers that they had gone on "strike", the learned Single Judge has observed that teachers had not resorted to any strike. He submitted that when it is an admitted fact as is clearly seen from the record, the observations of the learned Single Judge were clearly erroneous and hence, the order deserves to be set aside. 9. The term "strike" as per the dictionary, means an organized cessation or slow down by employees to compel the employer to meet the employees demands, a concerted refusal by employee to work for their employer, or to work at their customary rate of speed, until the employer grants the concessions that they seek. Simply stated a "strike" means cessation of work by the employees as a mark of protest against the alleged injustice suffered by them or any unfair act of the employer to meet their demands by their employer. In the instant case, there was no question of cessation of work [-7-] and even by any remote imagination it cannot be said that the relay fast in which the teachers had participated on 15th and 16th May, 2006 amounted to a "strike". This relay fast was held in front of the office of the Zilla Parishad, during the summer vacation when the school was closed. It is not the case of the management even remotely that the teachers were expected to be on duty in the school and during the school hours instead of carrying out their teaching duty they had participated in the relay strike. 10. As far as the issue of distribution of leaflets is concerned, the respondents have denied printing or distributing the leaflets. The inquiry proceedings and the depositions of employees as well as witness who was examined by the management in support of charges show that none of the delinquents were actually seen distributing leaflets. Thus, there is no material to show that this charge has been proved. 11. Rule 22 of the MEPS Rules prescribes the duties and code of conduct of the employees of the school. Rule 28 of the MEPS Rules, prescribes the [-8-] causes for removal or termination of service of the employees/teachers of the school. Rule 22(2) of the MEPS Rules deals with the code of conduct to be observed by all the teachers and employees of the school. Clauses (a) to (h) of Rule 22(2) prescribe the code of conduct and having regard to the inquiry proceedings, it is clear that none of the delinquents could be said to be guilty of acting in breach of the said code of conduct. Even prima facie, the evidence on record does not show that the teachers could be said to be guilty of the terms and conditions of service laid down by or under the Rules, by their act or any other act of similar nature. Even on the point of the alleged failure in discharge of their duties in regard to the declaration of results, the evidence of Mrs.Dalvi before the inquiry committee has given a clean chit to the teachers. 12. However, the learned counsel for the Appellants has pointed out that the respondents were guilty of misconduct which is covered by Rule 28(5) of MEPS Rules. He stated that the case of Respondents fell under the term "misconduct" . [-9-] 13. As far as misconduct is concerned, none of the respondents-teachers have breached any terms and conditions of service nor was there any violation of the Code of Conduct by them. The learned counsel for the Appellants tried to submit that the case of the respondents fell under 28(5)(c) i.e. wilful and persistent negligence of duty and any other act of similar in nature. The term "misconduct" has been defined and it shall include (i) breach of the terms and conditions of service laid down by or under the rules, (ii) violation of the code of conduct and (iii) any other act of similar nature. We are of the opinion that act of the Respondents does not fall under any of the three categories visualised under the term "misconduct". 14. The learned Single Judge has rightly held that there is one other facet which vitiates the inquiry proceedings i.e. there is breach of Rule 36(5). Sub-Rule (5) of Rule 36 deals with the role of the convener of the inquiry committee. On plain reading of sub-rule (5) of Rule 36, it is clear that the convener cannot participate in the inquiry proceedings as member of the inquiry committee and [-10-] his role is to assist the committee by playing a secretarial role. This is further clear from sub-rules (4), (5) and (6) of Rule 37. In the present case, it is seen that convener presided over the inquiry and has participated in the inquiry proceedings as a member and the convener has also signed the report of the inquiry committee. Thus, there is clear contravention of mandatory requirement of Rules 37 (3) to (6) of the MEPS Rules. The Supreme Court in the case of Vidya Vidya Vidya Vikas Mandal and Anr. Vs. Education Officer and Vikas Mandal and Anr. Vs. Education Officer and Vikas Mandal and Anr. Vs. Education Officer and Anr. CJT 2007(3) SC 2730, Anr. CJT 2007(3) SC 2730, Anr. CJT 2007(3) SC 2730, held that the provisions of Rule 37(6) are mandatory. In the present case, the mandatory requirements of sub-rule (6) of Rule 37 have not been complied with. In fact, the School Tribunal in its order, held that inquiry report was in violation of Rule 37(6) of the MEPS Rules, but however, for the reasons discussed above, the School Tribunal did not think it fit to remit the matter back to the management to conduct a fresh inquiry. 15. In view of the decision of the Supreme Court and the above facts, the learned Single Judge has rightly set aside the order of the School Tribunal [-11-] which had dismissed the appeals filed by the Respondents. We find no error or illegality in the view taken by the learned Single Judge. All the Letters Patent Appeals are dismissed. All Civil Applications are also dismissed. [J.N.PATEL, J.] [J.N.PATEL, J.] [J.N.PATEL, J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]