1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.8861 of 2007 Nandkumar Mahadeo Dengane Petitioner Vs. Bhavika Vidya Prasarak Mandal & ors. Respondents With Writ Petition No.9156 of 2007 Malati Mahendra Belose Petitioner Vs. Bhavika Vidya Prasarak Mandal & ors. Respondents With Writ Petition No.9157 of 2007 Vijaya Manohar Pate Petitioner Vs. Bhavika Vidya Prasarak Mandal & ors. Respondents With Writ Petition No.236 of 2008 Mrs. Rekha Hemant Khairnar Petitioner Vs. Bhavika Vidya Prasarak Mandal & ors. Respondents With Writ Petition No.713 of 2008 Mrs.Shobha Sunil Deshmukh Petitioner Vs. Bhavika Vidya Prasarak Mandal & ors. Respondents ----------- Mr.Mihir Desai for petitioners in W.P.Nos.2156 and 9157 of 2007. Mr.N.R.Bubna for petitioner in W.P.No.8861 of 2007. Mr.Mandar Limaye for petitioners in W.P.Nos.236 and 2 713 of 2008. Mr.C.K.Thomas for Resp.nos.1 to 3 in all the petitions. Mr.R.S.Apte for Resp.no.4 in all the petitions. Mr.S.K.Chinchalikar, AGP for Resp.no.5 in W.P. Nos.8861, 9156 and 9157 of 2007. -------- CORAM: B.H.MARLAPALLE, J. Reserved on : March 28, 2008. Pronounced on : April 08 2008. JUDGMENT: 1. All these petitions are directed against the judgments and orders rendered by the School Tribunal on 13th August 2007, thereby rejecting the appeals filed by the petitioners - teachers. Before the School Tribunal, the orders of dismissal by way of punishment were challenged and these orders arose from mainly a common incident of distribution of leaflets in the school premises and the relay fast on 15th and 16th May 2006 held in the premises of the Zilla Parishad office and in which the petitioners along with some of their dismissed colleagues had participated and, therefore, all these petitions are being decided by a common order. 3 2. All the petitioners except the petitioner in Writ Petition No.8861 of 2007, were Assistant Teachers in the primary section of Bhavika Vidyalaya run by the respondent no.1 - Society and the petitioner in Writ Petition No.8861 of 2007 was the Assistant Teacher in the secondary section of the said school. They were all confirmed teachers and had put in the service for a period anywhere from six to eleven years when they had approached the School Tribunal. Initially the said school was unaided but in March 2004 it became a fully aided school. The teachers alleged that from May 2005 to September 2005 the respondent nos.1 and 2 did not pay their salary as per the Rules and on 30/4/2005 Mrs.Sujata Kuveskar - Clerk and Mrs. Sarita Patil, Asst. Teacher were removed from service without following the due process of lay and on 8/10/2005 Mrs.Suneeta Raje the then Head Mistress was compelled to resign. Again in April 2005 two teachers from the primary section and two teachers from the secondary section were removed. All these incidents became a cause of unrest and insecurity amongst the teachers. Whenever the salary was offered to be paid, the teachers would be given a cash of about Rs.4200/- towards the salary and the remaining money as due and payable would not be paid 4 to them. It is further alleged that the teachers were barred from signing the muster roll and all these incidents were reported in the local print media on or about 6/9/2005. The respondent nos.1 and 2 issued letters to 25 teachers and again on 14/3/2006 ten teachers were issued letters which, the teachers alleged, was a sufficient proof of harassment to them at the hands of the respondent nos.1 and 2. On 27/4/2006 the teachers addressed a letter to the Secretary of Education and Sports Department, Mantralaya and prayed for intervention so as to take over the management of the school. This was followed by notice dated 29/4/2006 by the teachers informing their determinations to resort to relay fast in front of the office of the Zilla Parishad. Some of them were also issued a show cause notice on 27/5/2006 regarding distribution of leaflets and participation in the relay fast on 15th and 16th May 2006 and the said show cause notice was replied pointing out that they were not connected with the printing or distribution of leaflets and they admitted that they had participated in the relay fast as a mark of their protest against the mismanagement of the school, high handed attitude of the respondent nos.1 and 2 and the injustice meted 5 out to all the employees of the school. By letter dated 13/6/2006 they were informed that the disciplinary proceedings would be initiated against them as per the resolution passed by the management and an enquiry committee as contemplated under Rule 28 of the MEPS Rules, 1981 would be constituted. The teachers were called upon to nominate their representative. By a further letter dated 17/6/2006 the teachers were informed that the following would be the members of the enquiry committee: (1) Mrs.Devangana Bhagwan Keni, Management Representative (2) Mr.Vasant Kashinath Bagad, State Awardee Teacher (3) Mr. Bhagwan Keni - Convenor (4) Delinquent Teachers’ Representative By his letter dated 20/6/2006 Shri S.M.Dusane informed the convener of the enquiry committee that he would act as the defence representative of all the six teachers against whom the enquiry committee was 6 constituted. However, by a subsequent letter dated 7/7/2006 the delinquents were informed that the enquiry committee would consist of the following members: (1) Shri Prabhakar Jadhav, Management Representative / Convenor (2) Shri Vasant Bagad, State Awardee Teacher (3) Surendranath Madhukar Dusane, Delinquent Teachers representative 3. A detailed charge-sheet was issued on 21/7/2006. The enquiry proceeded and the enquiry report was submitted on or about 25/3/2007. The report signed by the Convener and the State Awardee teacher held that the charges were proved. Whereas the defence representative did not agree with the said report and in his separate report submitted on the same date he held that the charges were not proved. The management acted on the basis of the majority report and proceeded to issue the orders of dismissal which were the subject matter of challenge in the Appeals before the School Tribunal. Every 7 appeal has been dismissed by the School Tribunal for almost the same reasons. 4. At the first instance the Tribunal held that the enquiry report was in violation of Rule 37(6) of the MEPS Rules. The Tribunal also noted by referring to the judgment of the Supreme Court in the case of Vidya Vikas Mandal & anr. Vs. Education Officer & anr. [JT 2007 (3) SC 273] [JT 2007 (3) SC 273] [JT 2007 (3) SC 273] held that the provisions of Rule 37(6) are mandatory. However, the Tribunal held that there was no necessity to remand the matter to the management to conduct a fresh enquiry as two major charges viz. distribution of leaflets involving anti management propaganda and participation in relay fast were admitted and when the charges were admitted there was no necessity to conduct a departmental enquiry. In the view of the Tribunal the teachers were guilty of misconduct by resorting to the so called "hunger strike" in front of the office of the Zilla Parishad, Thane on 15/5/2006 and they were not workers to resort to such strikes. The teachers are the ideals of the society and their mission in life is to build the future of the young generation. Participation in the strike is 8 not a fundamental right and if the teachers had any grievance, resorting to distribution of anti management leaflets or hunger strike was not the form of protest which the teachers could adopt. The School Tribunal in this regard referred to the decisions of this Court in the following cases, (1) Maruti Anandrao Dhekane Vs. State of Maharashtra & ors. [2006 (6) Bom. C.R. 406] [2006 (6) Bom. C.R. 406] [2006 (6) Bom. C.R. 406] (2) Suresh Sakharam Sarankar Vs. Union of India & ors. [2006 (5) Bom. C.R. 768] [2006 (5) Bom. C.R. 768] [2006 (5) Bom. C.R. 768] (3) St. Ulai High School through its Principal & anr. Vs. Devendraprasad Jagannath Singh & anr. [2007 (1) Bom. L.R. [2007 (1) Bom. L.R. [2007 (1) Bom. L.R. 60] 60] 60] . The School Tribunal also referred to the Constitution Bench judgment in the case of All India Bank Employees Association Vs. National Industrial Tribunal [AIR 1962 SC 171] [AIR 1962 SC 171] [AIR 1962 SC 171] as well as the subsequent judgment in the case of Capt. Harish Uppal Vs. Union of India [(2003) 2 SCC 45] [(2003) 2 SCC 45] [(2003) 2 SCC 45]. 9 5. I have gone through the record and proceedings as well as the reasoning set out by the Tribunal while dismissing the appeals. It is evident that the Tribunal was overwhelmed and carried away by totally misguided belief that the teachers had gone on strike and that they had distributed the leaflets casting aspersions and levelling unfounded allegations against the school management and these admitted acts amounted to misconduct on their parts. Let it be clarified at the threshold that the teachers had not resorted to any strike. The summer vacation of the school had commenced on or from 2nd May 2006 and the teachers had intimated in writing to the management at least two weeks prior that they would be participating in the relay fast that was to be held in front of the Zilla Parishad office as a mark of their protest against the mismanagement of the school and the brutalities of the respondent nos. 1 and 2. The term "strike" as per the dictionary means, an organized cessation or slow-down of work by employees to compel the employer to meet the employees’ demands; a concerted refusal by employees 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 10 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 and even by any remote imaginations the relay fast held and in which the petitioners had participated on 15th and 16th May 2006 was held in front of the office of the Zilla Parishad, during the summer vacation and it was 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 remaining on their teaching duty they had participated in the relay strike. The Tribunal committed a manifest error in equating the relay fast with a strike and naming it a "hunger strike". 6. On the issue of distribution of leaflets I have gone through the enquiry proceedings and the depositions of the delinquent employees as well as that of Mrs.Dalvi who was examined by the management in support of the charges which clearly goes to show that none of the delinquents were seen distributing the leaflets in the school premises on 29/4/2006 and at the same they were printed leaflets. The 11 delinquents in their depositions also stated that the dismissed employees had taken out these leaflets and the delinquents were supporting the cause of these dismissed employees to the extent that they were illegally removed. It was also pointed out that the delinquent teachers had agreed to participate in the relay fast as a mark of protest and also to impress upon the Government authorities to take over the management of the school through the Administrator. It also needs to be highlighted that while the relay fast was withdrawn some of the local MLAs and the Zilla Parishad office bearers had assured the teachers to conduct an enquiry into the affairs of the respondent no.1 - Society and more particularly running of the school and in keeping with these assurances the Education Officer (Secondary), Zilla Parishad carried out an enquiry after visiting the school and submitted his report on 30/5/2006. The said report which is on record lists out series of instances of mismanagement and the failures of the management to comply with the requirements of the Secondary School Code as well as the MEPS Rules, 1981. During the course of argument I was informed that on 18/4/2007 an Administrator came to be appointed for the Secondary section and for the 12 primary section recommendation was made on 30/5/2007 by the Deputy Director of Education. 7. In my considered opinion, the report submitted by the Education Officer squarely supports the grievances raised by the delinquent teachers while resorting to relay fast and this report also goes to show that the teachers were not at fault. The School Tribunal has not referred to this report dated 30/5/2006 submitted by the Education Officer which lists a number of irregularities including illegal appointments. It also states that from April 2005 till the report was submitted the pay bills of the teachers and non teaching staff were not submitted to the Education office and same was the case in regard to the Provident Fund deductions. The monthly salary bills were not submitted deliberately within the prescribed time period. On perusal of the report it is evident that the mismanagement of the school had crossed the tolerable limits and the whims and fancies of the managing committee were writ large. In such a situation the teachers submitted a representation to the Education authorities on 27/4/2006 and finally resorted to relay fast on 15th and 16th May 2006. These acts do not amount to a 13 misconduct and the School Tribunal committed a grave error in holding that the teachers were guilty of misconduct and they had admitted the same in regard to the distribution of leaflets as well as by participating in the relay fast. 8. As per Rule 28(5) of the MEPS Rules, an employee shall be liable to be punished on one or more of the following grounds namely: (a) misconduct; (b) moral turpitude; (c) wilful and persistent negligence of duty; (d) incompetence. Under the said Rule the term "misconduct" has been defined and it shall including the following acts, namely: (i) breach of the terms and conditions of service laid down by or under the rules; 14 (ii) violation of the code of conduct; and (iii) any other act of similar nature. . 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 regards to the enquiry 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. The evidence on record also, even prima facie, 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 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 enquiry committee has given a clean chit to the teachers and an inference could be drawn from her evidence that the management was deliberately acting high-handedly against these teachers. 9. There is another facet which also vitiates the enquiry proceedings including the findings of the 15 enquiry committee. Rule 36 of the MEPS Rules provides for the details of the enquiry committee to be constituted and as per sub-Rule (2)(a) the enquiry committee must consist of the following three members: (i) a representative of the management to be nominated by the management or the President of the management, if so authorised by the management; (ii) a member to be nominated by the employee from amongst the employees of any private school; and (iii) a member chosen by the Chief Executive Officer from the panel of teachers on whom State / National Award has been conferred. . Sub-Rule (5) of Rule 36 states that the convenor of the respective enquiry committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the enquiry committee and shall maintain all the relevant record of the enquiry. It is thus clear that the convenor is not a member of the enquiry committee but is associated with the enquiry committee with a limited role and it is his duty to initiate action pertaining to the conduct of the enquiry and to maintain all the relevant record of the enquiry. If the enquiry is adjourned from time to time it is the duty of the convenor to 16 intimate the next date of the enquiry sittings but he does not participate in the enquiry proceedings as a member of the enquiry committee. He assists the enquiry committee in the secretarial role. . Rule 37 of the MEPS Rules lays down the procedure of enquiry. Sub-Rules (4), (5) and (6) of Rule 37 read as under: "If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within the stipulated period, the Inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as, provided in sub-rule (2). (5) The Convenor of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the inquiry. (6) The meetings of the Inquiry Committee shall be held in the school premises during normal school hours or immediately thereafter, if the employee agrees and even during vacation." . It is clear from the enquiry proceedings in the instant case that the mandatory requirements set 17 out in Sub-Rules (4) to (6) of Rule 37 have not been followed. On conclusion of the enquiry, a summary of the proceedings was not forwarded to the delinquent - teachers within four days so as to allow him / her a time of seven days to offer his / her further explanation, if any. The teacher was not given an opportunity to submit his / her further explanation to the convenor of the enquiry committee. In addition, the enquiry committee’s report has been signed by Shri Vasant Bagad and Shri Prabhakar Jadhav. Shri Prabhakar Jadhav was the convenor of the enquiry committee but from the proceedings it is clear that he presided over the enquiry and actively participated in the same as a member. The enquiry committee report holding that the charges were proved was required to be signed by Shri Vasant Bagad and Smt.Devangana Keni, who was the management representative. Instead Shri Vasant Bagad and Shri Prabhakar Jadhav signed the report and submitted it to Smt. Devangana Keni. This is contrary to the mandatory requirements of Rule 37(6). Hence the enquiry proceedings as well as the enquiry committee’s majority report are vitiated for non-compliance of the mandatory requirements of Rule 37(3) to (6) of the MEPS Rules. In this regard, I am 18 supported by the decision in the case of Vidya Vikas Mandal (Supra). This is one more ground to set aside the impugned judgment of the School Tribunal. In the said case the Supreme Court held that when the committee of three members is appointed to enquire into a particular matter, all the three should submit their combined report, whether consenting or otherwise. In the instant case the majority report could be treated to have been validly signed only by one member of the committee and the minority report has been signed by the teachers’ representative and Smt. Devangana Keni has not signed any of these reports and, therefore, the mandatory requirements of sub-Rule (6) of Rule 37 have not been complied with. The School Tribunal has also held to the same effect, but for different reasons and this finding of the Tribunal has not been challenged by the management. 10. The learned counsel for the respondent - management referred to the judgment of the Supreme Court in the case of Vidya Vikas Mandal (Supra) and prayed for the liberty to be granted to the management to conduct a de novo enquiry. The School Tribunal in its impugned order has dismissed the appeals only on the ground of two charges and by 19 holding that both the charges were admitted, viz. distribution of the anti management leaflets and participation in the "hunger strike". Both these charges have been dealt with in the preceding paragraphs of this judgment and the Tribunal’s findings thereon have been held to be unsustainable. The management has not challenged the judgment rendered by the Tribunal and, therefore, it cannot now turn back and state that it should be granted an opportunity to enquire into the remaining charges as set out in the charge-sheet dated 21/7/2006. It is also pertinent to note that the report submitted by the Education Officer (Secondary), Zilla Parishad clearly goes to show that the teachers were driven to desperation by the acts of gross mismanagement and the charges so levelled against the teachers were false and fabricated. The management was determined to rope in the teachers to initiate disciplinary action against them and punish them by dismissal from service. The management did not want any dissenting voice against its actions which were grossly illegal. The school run by the respondent nos.1 and 2 is a fully aided school and it was the responsibility of the officers in the Zilla Parishad as well as in the education department to take appropriate steps in 20 time for redressal of the grievances raised by the teachers and more particularly for the proper management of the school. It was only when a drastic step of resorting to relay fast was taken by the teachers that the authorities woke up and the Education Officer was directed to visit the school, inspect the record and submit a report. On the basis of his report, as noted earlier, an administrator has been appointed for one section and the recommendation on the same lines has been submitted by the Deputy Director of Education for the other section, as was stated by the learned counsel for the petitioners. I, therefore, do not find any merit in the prayer made by the learned counsel for the management to allow de novo enquiries to be conducted in the remaining charges. It must also be noted that the management has not examined any witness to support these remaining charges and there is no prima facie evidence to proceed against any of these teachers on any of the remaining charges. 11. In the premises, these petitions succeed and the same are hereby allowed. The impugned orders of the School Tribunal dismissing the respective appeals 21 filed by the petitioners are hereby quashed and set aside. Consequently the appeals filed by the petitioners -teachers i.e. Appeal Nos.23/2007, 27/2007, 30/2007, 33/2007 and 29/2007 are hereby allowed and the orders of dismissal challenged in the respective appeals are quashed and set aside. The petitioners are directed to be reinstated in service within two weeks from today and they shall be entitled for full salary for the intervening period, continuity in service and all the other consequential benefits. 12. Rule is made absolute accordingly with no order as to costs. (B.H.MARLAPALLE,J.) . The learned counsel for the management at this stage submitted an oral application for stay to this order for a period of four weeks. The learned counsel for the petitioners-teachers have opposed 22 this application. . Application is rejected. (B.H. MARLAPALLE,J.)