: 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.1425 OF 2005 WRIT PETITION NO.1425 OF 2005 WRIT PETITION NO.1425 OF 2005 Shankar Hanumant Pawar .. Petitioner. Versus State of Maharashtra & Ors. .. Respondents. Mr.Ashok B. Tejane for the petitioner. Mr.C.R.Sonawane, A.G.P. for respondent No.1. Mr.A.S.Rao for respondent Nos.2 and 3. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATE : 17th June, 2008. DATE : 17th June, 2008. DATE : 17th June, 2008. P.C.: P.C.: P.C.: 1. By this petition, the petitioner challenges an order dated 30.10.2002 passed by the Commissioner, Kalyan Dombivali Municipal Corporation, Kalyan dismissing the petitioner from service. 2. The petitioner was working as the Head Master of Marathi Medium Madhyamik Vidyalaya of Kalyan Dombivali : 2 : Municipal Corporation at Dombivali. The charge-sheet was served on the petitioner. The Enquiry Officer submitted his report, holding that Charge No.2 has been proved against the petitioner to the Commissioner of the Corporation. The Commissioner accepted the report of the Enquiry Officer that Charge No.2 has been proved against the petitioner and imposed the punishment of dismissal on the petitioner. 3. The submission of the learned Advocate appearing on behalf of the petitioner is that looking to the record of the enquiry, the nature of the charge and the statement of allegation which was given, it cannot be said that Charge No.2 has been proved against the petitioner. Charge No.2 levelled against the petitioner reads as under:- "Charge No.2 :- "Charge No.2 :- "Charge No.2 :- You have purposely not paid attention to improve the standard of education in Kalyan-Dombivali Municipal Corporation’s Marathi Madhyamik Vidyalaya." 4. The statement of allegation relevant to Charge No.2 reads as under :- . "He has not paid attention to improving the standard of education in Marathi Madhyamik : 3 : Vidyalaya, and his work on the said post is not satisfactory and his conduct is not befitting". 5. There are no particulars given and no details given. Discussion of Charge No.2 in the Enquiry Officer’s report reads as under :- "2. Charge No.2 :- "2. Charge No.2 :- "2. Charge No.2 :- . You have purposely not paid attention to improve the standard of education in Kalyan-Dombivali Municipal Corporation’s Marathi Madhyamik Vidyalaya. . There is much substance in this charge and the charge-sheeted employee Shri Pawar always kept the school atmosphere contaminated. He always attempted to encourage personal enmity. . Perusal of the result of S.S.C. Examination in Madhyamik Vidyalaya for the year 1999-2000 shows that out of 19 students only 3 students have passed. Which means that the result was 15%. Whereas the result for the year 98-99 was 11% only. It is the responsibility of the Head Master to improve standard of education. However, from the available evidence it is seen that he has not made any attempt in that direction. Therefore, with regard to improving standard of the school, inaction on the part of the charge-sheeted employee is seen. Secondary School Code prescribes duties and responsibilities of Head Master. These include important duties like holding school examinations, results, exercising control over the teachers, maintenance of discipline, holding regular meetings of teachers etc. However from evidence given by the witnesses and documentary evidence, it is seen that the charge-sheeted employee has failed to discharge the said duties. . With regard to progress of the school, charge-sheeted employee Shri Pawar was not participating in the regular meetings of Assistant Teachers. As a result there was no exchange of thoughts between the teachers and the Head Master : 4 : and there was no progress in the school’s work. From the distribution of subjects it is seen that a policy of discrimination was adopted in respect of the teachers". 6. Perusal of the above quoted portion from the Enquiry Officer’s report shows that the principal reason given by the Enquiry Officer for holding that Charge No.2 is proved against the petitioner is that the result of the examinations of the academic years 1998-1999 and 1999-2000 was low. The learned Counsel appearing for petitioner, submitted that if low result during two years is the only cause for dismissal of the petitioner, the petitioner alone could not be held responsible for low result of examination. The students, teachers and Head Master of the school all together would be responsible. 7. The learned Counsel appearing for respondents, on the other hand, submitted that during the departmental enquiry, evidence was led and on the basis of that evidence, the Enquiry Officer found that Charge No.2 is proved against the petitioner. According to learned Counsel for the respondents, Charge No.2 was very serious. We have quoted Charge No.2 above. We have also quoted the statement of allegation. The statement of allegation does not serve its purpose, namely, giving particulars of charge and the details of the charge. The Enquiry Officer : 5 : does not inform the delinquent about the material against him and what material is to be used for holding the petitioner guilty of the charge. Really speaking, holding of a departmental enquiry on the basis of such a charge and statement of allegation itself is in violation of principles of natural justice. Perusal of the record shows that oral evidence has been recorded of teachers, who were working under the petitioner and their evidence does not disclose that the petitioner failed to take steps to improve the standard of education. Their evidence is about the alleged conduct of the petitioner towards teachers when admittedly there was no charge against the petitioner in relation to his behaviour with the colleagues. 8. In our opinion, therefore, only because the result of the students for two academic years was low, it cannot be said that the petitioner committed a misconduct of purposely not paying attention for improving the standard of education. 9. In our opinion, this is a case of no evidence. The petitioner has been held guilty of charge levelled against him when there is no clinching evidence against him on record. The order of the disciplinary authority : 6 : suffers from non application of mind and in our opinion, therefore, it is liable to be set aside. The order dated 30.10.2002, impugned in this petition, is set aside. 10. It is held that the petitioner is entitled to reinstatement in service and he is also entitled to backwages. It is a common ground that the petitioner had reached the age of superannuation in June, 2006 and, therefore, the only relief which can be granted to the petitioner is to pay him his backwages from the date of the order of dismissal till the date of his superannuation. He shall also be entitled to pension and other retiral benefits ignoring the dismissal order. We do not have before us the material as to whether the petitioner was gainfully employed or not during the intervening period. In these circumstances, therefore, in our opinion, it will be appropriate to issue following directions :- a) The petitioner shall within a period of 4 weeks from today, file before the Commissioner of Corporation - respondent, the affidavit indicating whether he was gainfully employed or not during the aforesaid period. The Commissioner shall hold enquiry and make an order as to what is the amount : 7 : of backwages to which the petitioner is entitled. That order shall be made by the Commissioner within a period of 8 weeks from the date of submission of the affidavit as aforesaid by the petitioner and the payment of backwages that may be found payable to the petitioner within a period of 2 weeks from the date of order. b) In case, the order is adverse to the interest of the petitioner, the petitioner shall be at liberty to adopt appropriate remedies that may be available to him in law. 11. Rule is made absolute accordingly with no order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)