1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Letters Patent Appeal No. 215 of 2010 in Writ Petition No. 2277 of 1996 1] Chandrashwar Shikshan Sanstha, Dongarkinni, Tah. Malegaon, Dist. Akola, through its president, Shri B.M.Agrawal, 2] D. G. Wakode, Aged about 48 years, Occu. Service, R/o Dongarkinni, Tah. Malegaon, Dist. Akola. ......APPELLANTS ...VERSUS... 1] Ramesh Dagdurao Deshmukh, Aged about 50 years, Occu. Agriculturist, R/o Dongarkinni, Tah. Malegaon, Dist. Akola. 2] Education Officer (Secondary), Zilla Parishad, Akola. 3] Deputy Director of Education, Amravati Division, Amravati, 4] Presiding Officer, School Tribunal, Amravati Division, Amravati. 5] State of Maharashtra, through The Advocate General of Maharashtra, Bombay. ......RESPONDENTS =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==- Mr. S.P.Kshirsagar, Advocate for the Appellant. Mr. A.Shelat and C.A.Joshi, Advocates for respondent no.1 2 C ORAM : D.B.BHOSALE ; and PRASANNA B. VARALE, JJ. DATED : 5th August, 2010. (Per : P. B.Varale, J.) 1] Heard learned counsel for the parties. 2] By this Letters Patent Appeal, the appellants have challenged the judgment and order dated 14/12/2009 passed by the learned Single Judge in Writ Petition No. 2277/1996, whereby the writ petition filed by the appellants came to be dismissed and the judgment and order dated 10/7/1996 passed by the School Tribunal, Amravati in Appeal No. 218 of 1994 was confirmed. 3] The brief facts giving rise to this Letters Patent Appeal are as follows : Respondent no.1 was initially appointed as Head Master in the school namely Smt. Narmadabai Agrawal Vidyalaya, Dongarkinhi, Tah. Malegaon, run by the appellant-management, on 01/7/1993. It is the case of the appellant-institute that respondent no.1 was not following the directions issued by the management and he had misappropriated the money. Therefore, the management of the appellant-institute decided to hold Departmental Enquiry against respondent no.1. Accordingly, a committee was constituted, consisting of the President of the management as a convener and two other members, who were the teachers, one of whom was a State Awardee teacher. After holding enquiry, the convener of the committee submitted his report to the management. In this report, dismissal of respondent no.1 was recommended and 3 accordingly, the appellant-management passed a resolution whereby the services of respondent no.1 came to be terminated with effect from 28/10/1994. 4] Initially, respondent no.1 had filed a civil suit in the court of Civil Judge, Junior Division, Malegaon, being Regular Civil Suit No. 113/1994 and subsequently an appeal being Appeal No. 218/1994 came to be filed before respondent no.4 – Presiding Officer, School Tribunal, Amravati Division, Amravati. The Tribunal by its judgment and order dated 10/7/1996, allowed the appeal and the order of termination was quashed and set aside. The tribunal directed the appellant-management to reinstate respondent no.1 on the post of Head Master with continuity in service with all consequential benefits, within a period of 30 days from the date of the order. The Tribunal had further directed the management to pay arrears of salary by way of backwages from the date of termination till the date of reinstatement, within 3 months from the date of the order, failing which it was recommended to the Government that an equal amount be deducted from the grants due and payable to the appellant-management and be paid to respondent no.1. A copy of the order passed by the Tribunal is placed on record at ‘Annexure-K’. 5] Being aggrieved by the order dated 10/7/1996 of the School Tribunal, the management preferred a Writ Petition being W.P. No. 2277/1996 before the learned Single Judge. The learned Single Judge found no substance in the writ petition. While disposing of the petition, the learned Single Judge held that the School Tribunal has rightly 4 allowed the appeal of respondent no.1 and ultimately the petition was dismissed with costs of Rs.5,000/- to be paid by the convener of the enquiry committee, personally. 6] Mr. S.P.Kshirsagar, learned counsel for the appellants vehemently argued before us that the learned Single Judge while passing the impugned judgment and order, has not appreciated the submissions of the appellants in a proper perspective and erred in arriving at the conclusion. Learned counsel has urged before us that the enquiry report submitted by the convener of the committee is vitiated as it is not in accordance with the mandate of the judgment of the Apex Court in the case of Vidya Vikas Mandal and another ..vs.. Education Officer and another, reported in 2007(3) Mh.L.J. 801. The thrust of the argument of learned counsel for the appellants was only on this point. The learned counsel submitted that the enquiry committee was consisting of three members, one convener of the committee and two other members/teachers, out of whom one was State Awardee teacher. Learned counsel further submitted that the appellant-management has received only one report i.e. the report of the convener of the committee and it did not receive the other two reports and it has acted upon only one report. Learned counsel further submitted that in view of the judgment of the Apex Court in Vidya Vikas Mandal’s case (supra), there ought to have been a combined report of all the three members and it is the mandate of the Apex Court. According to the learned counsel, as there was neither a combined report nor separate report of the members received by the 5 management, the enquiry against respondent no.1 is vitiated and as such the matter requires to be remanded back to the enquiry committee for fresh enquiry. 7] In view of the specific ground raised by learned counsel for the appellants, we have given our anxious consideration to it. We are unable to persuade ourselves with the submissions of learned counsel for the appellant for two reasons, firstly, the ground raised before us as well as before the learned Single Judge in respect of the report of the committee being vitiated, was urged by way of oral argument and not by way of pleadings/written submissions and secondly, though it is vehemently argued before us that in view of the Apex Court judgment in Vidya Vikas Mandal’s case the enquiry is vitiated, the appellant had taken altogether a contrast stand before the tribunal. It is interesting to note that the appellant-management before the tribunal as well as before the learned Single Judge, submitted that the management has considered the enquiry report of the convener of the committee and the members. Not only this, it was a stand of the management that termination of respondent no.1 was in view of the report submitted by the convener and as such the management has followed the provisions of Rule 36 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short “the Rules, 1981”). We find that the learned Single Judge has considered this aspect of the matter and found that the appellant-management has taken a contradictory stand. It will be useful to refer to the observation of the learned Single Judge, in the judgment 6 dated 14/12/2009, particularly para 8 thereof, which reads thus :- “8. As observed, the argument of Shri Kshirsagar, learned counsel for the petitioners, is two-fold; first that the other two members did not submit the report at all to the management of school and the second is that the report of all three should be combined. Shri Kshirsagar submits that since the management did not receive the other two reports, it had acted upon only one and that cannot be done by the Management and therefore, it is necessary to direct a fresh enquiry in the matter. The submission does not appear to be correct at all, since it appears to be against pleadings and the record. I may reproduce here paragraph 7 of the written statement of the petitioner before the school Tribunal. 7. In reply to sub-ground-4, it is submitted that the respondent no.1 management has already considered the enquiry reports of the convenor and two other members and after judging the pros and cons and after taking the most reasonable view, it has resolved to terminate the services of the appellant. Contents of sub-ground (5) are emphatically denied. It is submitted that the opportunities provided under the law were afforded to the appellant. The termination order has been properly issued by the President of the respondent no.1 in terms of the Resolution passed by the management. Hence, rest of the contents of sub-ground (6) are hereby emphatically denied. It is strictly denied as alleged in sub-ground (7) that the enquiry was in any way illegal and the charges were not sufficient to impose the major penalty of termination. It is denied that the termination is in any way illegal and deserves to be quashed but on the contrary, the termination being perfectly legal and valid, the same is to be confirmed and deserves to be confirmed at the hands of this Hon’ble Court. In reply to sub- ground (8) it is submitted that the grounds which have not been urged in the appeal Memo, cannot be argued directly by the appellant. Contents of sub-ground (9) are also denied.” 7 8] The learned Single Judge also found that apart from the pleadings, there is a resolution passed by the management, accepting the findings of the decision of the enquiry committee. The record show that the submission of learned Advocate for the appellant that there were no other reports available with the management, except the report of the convener of the committee, is ill founded for the reason that the resolution refers to the reports of other two members and the management did not accept the finding of these two reports. It will be useful to refer the observations made by learned Single Judge in this behalf, which reads thus : “9. Not only there is such pleadings, there is also a resolution of the society by which services were decided to be terminated. The relevant portion of resolution no.2 dated 27/10/1994 is as follows :- “Proposal -In today’s meeting, Shri G.H.Agrawal the Secretary of the Society has proposed that the findings and decisions given by the Enquiry Committee constituted under Rule 36 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 after completing the work of enquiry into the charges levelled against Shri R.D.Deshmukh, the Headmaster in Smt. Narmadabai Agrawal Vidyalaya run by the society are given different by three persons. Today’s meeting is of the opinion that the findings and decision given by the convener/observer of the Enquiry Committee are more reasonable. On the contrary, the findings and decisions given by other two members of the enquiry committee do not seem to be proper at all. However, the findings and decision given by the State Award Winner Headmaster Shri Dahibhate are not coherent. Similarly, the findings and decision given by Shri Lahore, the representative of Headmaster Shri Deshmukh are one sided and not based on the merits and demerits.” 8 10. This resolution is also filed on record of the School Tribunal. If the pleadings and the above resolution are read as they are, it cannot lie in the mouth of the petitioner to say that it did not receive the reports of the other two members of the Inquiry Committee. The Resolution clearly says how and why the conclusions arrived at by the other two members cannot be accepted and how they are wrong. The Resolution clearly suggests that both the reports of Shri Dahibhate and Shri Lahore were considered word by word and were rejected. This clearly indicates that the other two reports were received by the Management. They were placed before the Managing Committee. The Managing Committee considered the findings in those reports and then passed a resolution. For this reason, the above submission of Shri Kshirsagar needs to be rejected and it must be held that the Management did receive the report and they were duly considered.” 9] It is really surprising to note that the appellant- management is taking a somersault in the matter. The stand taken by the appellant before the tribunal as well as before the learned Single Judge is in total contract and urged by way of oral submissions only. Learned counsel for the appellant submitted that the learned Single Judge has not considered the judgment of the Apex Court in Vidya Vikas Mandal’s case and as per the mandate of the said judgment, there should have been a combined report for initiating action of termination of an employee. We find that the learned Single Judge has dealt with these submissions of the learned counsel for the appellant in detail. We may refer to those observations, which reads thus : “11. The next submission that is made on the basis of Vidya Vikas Mandal’s case is that the 9 report is not in accordance with the mandate of the Supreme Court, in as much as, it is not a combined report. He interprets the word “combined” to mean that there ought to be single report of all three together. The Supreme Court nowhere says that there ought to be single report at all. In fact, in the instant case, the report can strictly be said to be combined. It appears from the report of the convener that he received other two reports and after taking stock of those two reports, he incorporated those findings of other two reports in his report and submitted his report to the management. The report of the convener discusses the report of the other two and he even observes why the findings in the other two reports should not be accepted. Thus, what the convener does is that he submits a report which also contains a finding recorded by the other two. The report in the instant case is certainly a combined report. Even if the word ‘combined report’ is to be interpreted in that sense, the mandate is certainly followed.” 10] Mr. A. Shelat, learned counsel for respondent no.1 submitted that the appellant-management is trying to put up totally new case before this Court, which cannot be allowed. Learned counsel further submitted that it was the case of the management before the tribunal that the management has followed the mandate of Rule 37 of the Rules, 1981 and accepted the report. Learned counsel further submitted that it does not lie in the mouth of the appellant to show that the enquiry report is vitiated, when stand of the appellant before the tribunal was that the management has acted in accordance with the enquiry report and followed the provisions of the Rules, 1981. To substantiate his contention, he invited our attention to the written statement filed by respondent no.1 before the tribunal, a copy of which is placed on record at ‘Annexure-J’. 10 We may refer to the relevant portions of said written statement, which reads thus : “It is respectfully submitted that the respondent society conducted an enquiry strictly in terms of the provisions contained in Rules 36 & 37 of Rules, 1981.” ............. (page 140 of the paper book) “The enquiry committee conducted the enquiry by strictly following the Rules of natural justice by affording all reasonable opportunities to the appellant and by following the provisions contained in Rule 37 of Rules 1981. That the report submitted by the Convenor, the members of the enquiry committee were placed in the meeting of the management held on 27.10.1994 and management resolved to terminate the services of the appellant as a result whereof the termination order was also issued to the appellant on the same date i.e. 27.10.1994 and the services of the appellant came to be terminated from 28.10.1994.” (page 141 of the paper book) 11] We find considerable merit in the submissions made by learned counsel for respondent no.1. In our considered opinion, the learned Single Judge has rightly considered the contentions raised by both the sides and arrived at a just and proper conclusion. We see no reason to interfere in the impugned order. The appeal lacks merit and deserves to be dismissed. Accordingly, the Letters Patent Appeal is dismissed. JUDGE JUDGE Diwale