1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8686 OF 2009 Waheed Akhtar Ansari ...Petitioner v/s The State of Maharashtra and ors. ...Respondents Mr A.N. Maniyar for Petitioner. Mr C.R. Sonawane, AGP for Respondent Nos.1 and 2. Mr Nasrat Shah i/b Mr Sayed Zia for Respondent Nos.3 and 4. WITH WRIT PETITION (ST) NO.4124 OF 2010 The President, Khairul Islam and anr. ...Petitioners v/s President, One Member Grievance Committee and others ...Respondents 2 Mr Nasrat Shah i/b Mr Sayed Zia for Petitioner. Mr A.N. Maniyar for Respondent No.2. Mr C.R. Sonawane, AGP for Respondent Nos.3 and 4. CORAM : D.K. DESHMUKH AND A.R. JOSHI JJ. DATE : 22ND FEBRUARY 2010. P.C. :- 1] The facts that are relevant for deciding these petitions are that Waheed Akhtar Ansari (hereinafter referred to as the petitioner) was appointed as a Shikshan Sevak in a Junior College conducted by the Khairul Islam Higher Education Society (hereinafter referred to as the employer) on 22nd August 2002. A complaint was addressed on 16th January 2003 to the management by a lady teacher complaining of sexual harassment by the petitioner. An explanation was called for by the management from the petitioner on 18th January 2003. The services of the petitioner were terminated on 31st January 2003. Feeling aggrieved by the order terminating his services, the petitioner filed appeal No.16 of 3 2003 before the Grievance Committee which was constituted under a Government Resolution for redressal of grievances of the Shikshan Sevaks who were appointed under the Scheme of Shikshan Sevaks. By order dated 8th April 2004, the appeal filed by the petitioner was dismissed. The petitioner filed writ petition No.1680 of 2004 in this Court challenging the order of the Grievance Committee. That writ petition was disposed off by a learned Single Judge of this Court by order dated 2nd July 2004. Paragraph 8 of that order is relevant for our purpose which reads as under :- 8.In the circumstances, the order of termination and the order of the Grievance Committee shall have to be quashed and set aside. At the same time, I am of the view that it would neither be appropriate nor proper that the Petitioner be allowed to resume teaching duties having regard to the nature of misconduct that is required to be enquired into. Having regard to the nature 4 of the allegations made against the petitioner, the importance of preserving the sanctity of an educational institution and the entire background of the case, it would only appropriate and proper if the management is permitted to place the petitioner under suspension with effect from the date of the termination of his services viz. 31st January 2003. The management shall be at liberty to hold a disciplinary proceeding for the purpose of enquiring into the charge of misconduct against the petitioner. In order to facilitate this process and without any expression of opinion on the merits of the allegations, the orders of the Grievance Committee dated 8th February 2004 and of the First Respondent dated 31st January 2003 are accordingly quashed and set aside. The learned Single Judge thus set aside the order terminating the services of the petitioner as 5 also the order of the Grievance Committee dismissing the appeal of the petitioner. This Court also permitted the management to place the petitioner under suspension with effect from the date his services were terminated i.e. 31st January 2003 and the liberty was also granted to the management to hold disciplinary enquiring against the petitioner in relation to the alleged misconduct. It appears that while the enquiry before the management was pending, the petitioner approached this Court by filing writ petition No.6203 of 2005. In that writ petition, roznama dated 8th August 2005 of the enquiry proceedings was challenged. During the pendency of that petition, departmental enquiry was concluded and an order was made on 10th March 2005 by the management. By that order, the services of the petitioner were terminated with retrospective effect i.e. 31st January 2003. Writ petition No. 6203 of 2005 was decided by a Division Bench of this Court by order dated 28th September 2005. Paragraph 5 of that order is relevant which reads as under :- 6 5.In so far as the enquiry is concerned, the petition will have to be allowed inasmuch as it is only the Committee as set out earlier which is the Committee which can also go into the issue of misconduct. In the light of that petition is made absolute in so far a sprayer clause (a) is concerned. We further direct the management to refer the complaint in respect of which charge sheet was issued to the Committee for their consideration. It will be open to the petitioner to contend before the Committee that what can be considered is only the complaint based upon which his services were terminated. All these issues are left open to be considered by the Committee. Rule made absolute accordingly. No order as to costs. Thus, the Division Bench held that the management is not competent to hold enquiry, rule in 7 that petition was made absolute in terms of prayer clause (a). The management was directed to refer the complaint in respect of which chargesheet was issued to the Grievance Committee for consideration. Prayer clause (a) of that petition reads as under :- (a) this Hon ble Court may be pleased to issue a writ of certiorari or a writ or direction or order in the nature of certiorari under Article 227 of the Constitution of India to quash, set aside and cancel the Roznama dated 8-8-2005, being Exh. M herein, after examining its legality and propriety. Pursuant to the order of the Division Bench quoted above, the matter was taken up by the Grievance Committee constituted under the Government Resolution. That Grievance Committee decided the matter on 16th June 2007 and passed the following order :- 8 The services of Mr Waheed Akhtar Ansari are properly terminated by the management as per letter dated 31-1-2003 w.e.f. 31-1-2003. Against this order the petitioner filed writ petition No.7622 of 2007. That writ petition was decided by order dated 16th September 2008. By that order, the order passed by the Grievance Committee approving the order terminating the services of the petitioner with effect from 31st January 2003 was set aside, the matter was remanded back to the Grievance Committee, the management was granted liberty to lead evidence before the Grievance Committee. The operative part of the order dated 16th September 2008 is relevant which reads as under :- 10. In the circumstances, the petition shall stand disposed off with the following directions : i) The order of the Grievance 9 Committee dated 16th June 2007 (Exh.D) is quashed and set aside and the proceedings shall stand remitted back to the Grievance Committee for a decision afresh in accordance with the judgment of the Division Bench dated 28th September 2005 in writ petition No.6203 of 2005; ii) The First and Second Respondents would be at liberty to lead evidence in support of the charge of misconduct before the Grievance Committee. The Petitioner would be at liberty to cross examine the witnesses produced by the management. The Petitioner would also be at liberty to lead such evidence as he desires in defence to the charge of misconduct; iii) Both the parties shall appear before the Grievance Committee for receiving directions on 23rd September 2008. The Committee is requested to expedite the disposal of the proceedings and to endeavour to do so by 31st December 2008; 10 iv) The Petitioner shall continue to remain suspended pending the disposal of the proceedings before the Grievance Committee. The Grievance Committee shall inter alia determine as to whether the charge of misconduct, based on the complaint of sexual harassment made on 16th January 2003 has been duly established. The Grievance Committee shall also determine as to whether the Petitioner is entitled to arrears on account of honorarium and/or subsistence allowance during the period of suspension. 11. Rule is made absolute in the aforesaid terms. There shall, in the circumstances, be no order as to costs. By paragraph 10(iv) quoted above, it was declared that the petitioner shall remain suspended pending disposal of the proceedings before the Grievance Committee. Pursuant to that order of the 11 Division Bench, proceedings were taken up before the Grievance Committee. While the proceedings were pending before the Grievance Committee, the petitioner raised objection to the jurisdiction of the Grievance Committee to consider the appeal. That objection was decided by the Grievance Committee by order dated 4th August 2009. The Grievance Committee upheld the objection raised to its jurisdiction by the petitioner and held that due to amendment in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977 it has no jurisdiction to hold the enquiry. As a result, the proceedings pending before the Grievance Committee came to an end. Though the proceedings before the Grievance Committee came to an end and though there was no order terminating the services of the petitioner in force but he was merely placed under suspension and nobody was holding departmental enquiry against the petitioner, the petitioner filed writ petition No.8686 of 2009 in this Court seeking various reliefs. The principal relief claimed by the petitioner is that the management has placed the 12 petitioner under suspension because there is a very serious allegation made against him and though there is no order terminating the services of the petitioner, the petitioner is being continued under suspension indefinitely and nobody is holding any enquiry into the alleged misconduct against the petitioner. The petitioner therefore, by this petition, is claiming an order of his reinstatement in services of the management with full back wages. The management did not initially challenge the order of Grievance Committee holding that in view of the amendment in the said Act, it ceases to have jurisdiction in the matter, but while hearing of writ petition No.8686 of 2009 filed by the petitioner was going on, writ petition (st) No.4124 of 2010 was filed by the management challenging the order of the Grievance Committee holding that that it has lost jurisdiction in the matter due to amendment in the said Act. Now first taking up the petition of the management for decision, the only submission made by the learned counsel appearing for the management is that the Grievance Committee has 13 held that it has lost jurisdiction because of the amendment in the said Act. The learned counsel took us through the provisions of section 12 of the Amended Act which is a saving clause and submitted that a person who is appointed as a Shikshan Sevak can claim that he has attained the status of a teacher, but he must show that he has completed three years as a Shikshan Sevak. The learned counsel submits that because the petitioner was placed under suspension before he completed three years of service, he could not be deemed to be a Teacher within the meaning of section 12 of the Amended Act. In our opinion, the submission has no force. Perusal of section 12 of the Amended Act merely contemplates a Shikshan Sevak continuing in service for a period of three years after his appointment. The petitioner, though his services were terminated by the management twice, as a result of setting aside of those termination orders by this Court, has continued in service for a period of three years and therefore because of the provisions of section 12 of the Amending Act, he has become a 14 Teacher in a recognised school and therefore, in our opinion, no exception can be taken to the finding of the Grievance Committee that due to amendment in the M.E.P.S. Act, 1977 , it has lost jurisdiction over the matter. The petition filed by the management therefore has no substance and has to be rejected. It is accordingly rejected. 2] Now, taking up the writ petition filed by the petitioner for consideration, the learned counsel appearing for management submitted that the services of the petitioner were terminated second time by order dated 1st September 2005. That order has not been challenged by the petitioner before any authority or Court and that order has not been set aside by the Court or any authority. Therefore, according to the learned counsel the services of the petitioner stand terminated and he is not in the service of the management. In our opinion, it is clear from paragraph 10 of the judgment of the Division Bench dated 16th September 2008 passed in writ petition No.7622 of 2007 that the petitioner 15 was to continue to remain under suspension. An employee cannot continue to be under suspension unless he is in the service of the management. Had the termination of the service of the petitioner not been set aside by the Division Bench, the Division Bench could not have ordered continuance of the petitioner under suspension. A direction that the petitioner shall continue under suspension made by the Division Bench by necessary implication sets aside the order terminating the services of the petitioner. It is further to be seen that the intention of the Division Bench was that the charge against the petitioner was to be enquired into. The charge against the petitioner could have been enquired into only if he had been continued in service. If his services were already terminated, there is no question of charge against the petitioner being enquired into by the management. In our opinion, from the narration of events and various orders passed by this Court and the Grievance Committee from time to time, it is clear that no order passed by the management terminating 16 the services of the petitioner is in force and the petitioner continues in service of the management. The Grievance Committee has held that it has no jurisdiction in the matter due to amendment in M.E.P.S. Act and therefore, if the management was keen to hold enquiry into the misconduct against the petitioner, the management should have initiated the enquiry against the petitioner or challenged the order of the Grievance Committee. The management did nothing. Even its belated attempt to challenge the order of the Grievance Committee holding that it has no jurisdiction in the matter has failed. In these circumstances therefore, in our opinion, the management is not at all justified in refusing to reinstate the petitioner and continuing him under suspension. In our opinion, therefore, the petitioner is entitled to a direction to the management to withdraw the order of suspension and reinstate the petitioner in service. So far as the aspect of payment of back wages is concerned, normally after ordering reinstatement of the petitioner, the order of back wages should follow, 17 but a controversy has been raised before us that the petitioner was gainfully employee during the intervening period. In our opinion, however, whether the petitioner was gainfully employed during the intervening period and because of that, whether the petitioner is to be denied complete back wages or only part of the back wages is a disputed question of fact which cannot be gone into by us in our jurisdiction under Article 226 of the Constitution of India. In our opinion, a direction can be issued to the respondent No.2  Deputy Director to hold enquiry into that aspect of the matter. In our opinion, therefore, following order would meet the ends of justice. 3] The respondent  management is directed to reinstate the petitioner in service immediately. 4] Within a period of two weeks from today, the petitioner will submit his claim for back wages before the respondent No.2. Before submitting his claim before the respondent No.2, the petitioner 18 shall serve a copy thereof on the management. The management thereafter within a period of two weeks from receiving copy, submit its point of view on the application made by the petitioner to the Deputy Director of Education. Thereafter, the Deputy Director shall hold enquiry in accordance with law and issue directions regarding payment of back wages. The petitioner will be entitled to receive back wages save and except such wages as he may have earned during the intervening period. The management shall pay the amount of back wages as determined by the respondent No.2 within a period of two weeks from the date of the order of the Deputy Director subject to its right of challenge that order in accordance with law. The management shall be at liberty to hold enquiry into the alleged misconduct of the petitioner in accordance with law and for that purpose, if according to the management he is to be placed under suspension, the management may do so in accordance with the provisions of M.E.P.S. Act. Rule is made absolute accordingly with no order as to costs. 19 5] At the request of the learned counsel appearing for management, only that part of the order directing reinstatement in service shall remain stayed for a period of six weeks from today. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE A.R. JOSHI )