1 wp-1006-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 1006 OF 2009 The President Antar Bharati Shikshan Mandal Kolhapur and Ors. ..Petitioners Vs. Shri.Pirappa Devappa Dhanawade and Ors. ..Respondents .... Mr.V.C.Ghosalkar Adv. for Petitioners Mr.M.S.Topkar Adv. for Respondent No.1 Mr.A.P.Vanarse AGP for Respondent No.2 and 3. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : 27th JULY , 2009 P.C.: 1. The respondent no.1 was appointed as Librarian in the Institution of the petitioner. On 5th May, 2004, he came to be terminated after holding inquiry. The said termination was challenged by him before the Tribunal. The Tribunal by judgment and order dated 14th October, 2008 allowed the appeal holding that the departmental inquiry held against the respondent was void illegal and bad in law and the Tribunal 2 wp-1006-09 directed the petitioner to reinstate the respondent no.1 with full back wages and continuity of service with effect from 5th May, 2008. Being aggrieved by the said order, this writ petition has been preferred. 2. Heard the learned counsel for the Petitioner-Education Institution and the learned AGP for the Respondent Nos.2 and 3. Rule. By consent of the parties, rule is made returnable forthwith. 3. According to the petitioner, respondent no.1 remained absent without prior permission from 16th January, 2003, hence, Departmental Inquiry came to be held. After following due procedure, respondent no.1 came to be terminated. 4. The Tribunal held that the Respondent no.1 had not been served with notice in the matter relating to the inquiry due to which, the Respondent no.1 could not appear in the inquiry proceedings and could not defend his case. Therefore, the Tribunal held that inquiry conducted against the Respondent no.1 was in gross violation of Rules 36 and 37 of the Maharashtra Employees of Private (Control and Regulation) Rules. The principles of natural justice had not been followed, hence, the inquiry proceedings was held to be illegal, bad in law and void abinitio. 5. The learned counsel for the petitioner submitted that the statement of allegations was admittedly sent to the correct address of the respondent no.1 i.e. Post Nimshirgaon, Tal. Shirol, Dist.Kolhapur. He 3 wp-1006-09 submitted that the said document was not accepted by the respondent and hence, it was sent back to the petitioner as unclaimed. 6. The learned counsel for the respondent pointed out that the correct address of the respondent is at “village Nimshirgaon, Taluka Shirol, Dist. Kolhapur ” which is the address mentioned in the appeal memo as well as letter of interview Exhibit-31/1 sent by the petitioner institution to him. He submitted that even when the address of the respondent which is reflected in the letter of interview is “at village Nimshirgaon, Taluka Shirol, Dist. Kolhapur ” the relevant papers i.e. notice of inquiry dated 26th April, 2004 Exhibit-28/1, notice of appointment of State Award Winner Teacher dated 26th February 2004 Exhibit-28/1 were sent to address at “Nimshirgaon Tal. Hatkangale, Dist. Kolhapur. ” 7. In the lower Court, it was contended that the charge sheet and statement of allegations were sent on the correct address i.e. “Shirol ” but it was returned unclaimed, however, the record which was received from the Tribunal, shows that only Statement of Allegations was sent at the address of “Shirol ” and the charge sheet has been sent at “Hatkangale. ” As per Rule 36(2) of the M.E.P.S.Rules, the Inquiry Committee has to consist of one member from amongst members of the Management nominated by the 4 wp-1006-09 Management or by the President of the Management, one member to be nominated by the employee from amongst all employees of any private school and one member chosen by the Chief Executive Officer from the panel of the teachers on whom the State Award has been conferred. In the present case, the inquiry committee only consisted of the State Awardee teacher and member of the Management. The third member i.e. Member to be nominated by the employee was not present in the inquiry proceedings. The reason being that the Respondent No.1 had not received the notice of inquiry dated 26th February, 2004 as it was sent to the wrong address i.e. Hatkangale, so also notice of the appointment of the State Awardee teacher dated 22-6-2004 was also sent to the wrong address. As the respondent no.1 had not received any notice of inquiry, he did not remain present and could not participate in the inquiry proceedings. The documents on record show the charge sheet dated 10th February, 2004 has been sent to the appellant on wrong address. The acknowledgment shows that it was sent in Hatkangale Tahasil instead of Shirol Tahasil where the appellant resides at Nimshirgaon in Shirol. Similarly, the notice of inquiry dated 26th February 2004 (Exh.28/1) was sent on wrong address i.e. in Hatkangale Tahasil (Exh.28/1). The notice of appointment of state award winner teacher dated 26th February, 2004 was also sent to 5 wp-1006-09 Hatkangale. There is no material to show that these notices were received by the Respondent. 8. It is also noticed that there is no postal receipt or acknowledgment on the record about the notice dated 6-6-2003 filed by the petitioner showing that it was sent to the respondent on his correct address and the that he received it or he has refused to accept it. Similarly, there is no acknowledgment on record showing that the respondent received the notice dated 19-7-2002, 6-6-2002, 2-8-2002, 19-9-2002, 4-10-2002, warning dated 23-1-2003 and final notice dated 26-8-2003. 9. The notice of inquiry meeting dated 11-3-2004 (ex.28/1) was sent on wrong address i.e. it was sent to Hatkanangale Tahasil. Not only this the report and findings of the inquiry committee was not sent on his correct address as revealed from postal receipts and acknowledgment. 10.Thus, it is seen that the respondent no.1 did not receive any charge sheet, notice of inquiry, notice relating to the appointment of State Awardee Winner Teacher and all the other Memos/notices issued from time to time. As the respondent no.1 had not received any of these notices/memos, he would have no knowledge about the constitution of the inquiry committee or when the meetings of the inquiry committee were to be held. As he did not know about the inquiry committee being constituted, he could not remain present before the inquiry committee 6 wp-1006-09 and as he could not remain present before the inquiry committee, he could not defend his case. Had the respondent received the notice of appointment of State Awardee Winner Teacher, in such case, the petitioner would have appointed his nominee. However, as he did not receive any notice in relation to the constitution of inquiry committee or appointment State Award Winner Teacher he could not appoint his nominee nor could he defend his case properly. It is in these circumstances that the Tribunal held that whole proceedings of inquiry are bad in law and void abinitio. Looking to the fact that the respondent no.1 did not receive any notice of the inquiry about the constitution of the inquiry committee and other notices/memos were not received by him, the view taken by the Tribunal cannot be faulted with. Hence, no interference is called for. Writ petition is dismissed. Rule discharged. [ SMT.V.K.TAHILRAMANI,J.]