{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10032 OF 2010 1 Kranti Junior Adhyapak Mahavidyalaya (D.Ed.), Aurangabad, Tq. & District Aurangabad, through its Secretary. 2 Nandanvan Vidya Mandir Primary School, Shantipura, Aurangabad, through its Head Master. Petitioners Versus 1 The State of Maharashtra, through Secretary, Education Department, Mantralaya, Mumbai. 2 The Education Officer (Primary), Zilla Parishad, Aurangabad, Tq. & District Aurangabad. 3 Deepali Gundu Surwase, age: 34 years, Occ: Service, R/o Bhimnagar, Bhausingpura, Aurangabad, Tq. And District Aurangabad. Respondents Mr.S.K.Kulkarni, advocate holding for Mr.D.J.Choudhari, advocate for petitioners. Mr.D.V.Tele, A.G.P. for Respondent No.1. Mr.U.B.Bondar, advocate for Respondent No.2. {2} Mr.B.L.Sagar Killarikar, advocate for Respondent No.3. CORAM : S.S.SHINDE, J. Reserved on: 20 th September, 2011 Pronounced on: 28 th September, 2011. JUDGMENT: 1 Heard learned Counsel for petitioners. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. Learned Counsel for respective respondents waive service of Rule. 2 This writ petition is filed challenging the judgment and order dated 20.06.2009, passed by the Presiding Officer, School Tribunal, Aurangabad, in Appeal No.15/2007. Petitioners herein are Respondents No.1 & 2 in the said appeal and Respondent No.3 herein is the original appellant. The said appeal was filed by Respondent No.3 herein challenging the order of termination dated 15.06.2007. The copy of the appeal memo and also grounds taken in the appeal are placed on record at Exhibit-A on pages 17 to 69 of the compilation of this Writ Petition. Therefore, the facts leading to filing of such appeal are not repeated herein since those are extensively stated by the appellant in the appeal memo. It appears that after recording the evidence, considering pleadings of the parties and documentary evidence, the Presiding Officer, School Tribunal, Aurangabad, by his {3} judgment and order dated 20.06.2009, allowed the appeal filed by Respondent No.3 herein thereby setting aside the termination and also awarding back wages. Hence this writ petition. 3 Learned Counsel appearing for the petitioners submits that the Presiding Officer, School Tribunal, has failed to appreciate that if the inquiry committee constituted by the Management is in violation of the Rules, the Presiding Officer, School Tribunal, Aurangabad, ought to have directed the Management to constitute the Committee afresh and then conduct denovo inquiry, as directed in various judgments and this aspect has not been taken into consideration. It is further submitted that subsistence allowance is paid to the appellant and even the inquiry does not vitiate on the ground of non payment of subsistence allowance as the appellant remained present for inquiry, regularly. It is further submitted that the proceedings of the Committee reveal that the appellant as well as her representative have not cooperated with the inquiry and their conduct show that they behaved arrogantly during the course of the inquiry. It is further submitted that the School Tribunal has failed to appreciate that all the documents were supplied to the appellant, full opportunity was given in the inquiry and even the questionnaire was supplied to the appellant. Therefore, there was no violation of principles of natural justice, as alleged by the appellant. {4} 4 It is further submitted that the Tribunal should have taken into consideration that the appellant has not worked during pendency of appeal and, therefore, the principle of “No work, no pay” is applicable in the instant case, as such, granting full back wages to the appellant is illegal, contrary to the settled position of law. Even otherwise, the appellant failed to show that the appellant was not gainfully employed during the pendency of appeal and not complied the conditions to grant back wages. It is further submitted that the School Tribunal has not framed the issues as required and not replied it and, therefore, the impugned judgment and order is required to be set aside. It is further submitted that the whole approach of the Presiding Officer, School Tribunal, was prejudiced against the petitioners herein and he has recorded the findings on presumptions and assumptions, which is not sustainable in the eye of law. It is further submitted that the School Tribunal has given much weightage to the letter dated 18.05.2005 seeking assistance of the employees to pay tax of the school building taken on rent and there was understanding that later on the said amount would be repaid to the employees after getting rent from the Government or after making arrangement by the owner. It is further submitted that the alleged charges in the charge sheet are proved and inquiry report dated 29.05.2007 is based on documentary evidence and, therefore, the Management has rightly terminated the services of the appellant. {5} 5 It is further submitted that the Committee was properly constituted. The inquiry committee was consisting of a teacher from the panel approved by the Education Department and who is a National Awardee. There was also representative of the employee namely Mrs.Sulabha Mundhe, serving as a teacher in Sarasvati Bhuvan School. Mrs.Sonia D. Bagade was convener member of the Committee and, therefore, the Committee was properly constituted. It is submitted that the School Tribunal is not correct in holding that the Committee was consisting of a retired teacher and, therefore, the Committee was not properly constituted. Learned Counsel for the petitioners has invited my attention to the reported judgment of this Court in the case of Sudha d/o Bhaskarrao Saikhede Vs. Yashodabai Shikshan Sanstha and others, reported in 2003 (4) Mh.L.J. 659 and submitted that this Court has taken a view that the rule does not disqualify an Awardee teacher if he is above 65 years of age nor limits his association to only one inquiry committee at a time. Therefore, according to the learned Counsel for the petitioner, merely because one member was a retired teacher, it could not have been held that the Committee is not properly constituted. 6 Learned Counsel further submits that the evidence of two independent witnesses is not properly considered by the School Tribunal. In fact, two witnesses, namely Santosh and Anita were independent witnesses and, therefore, the School Tribunal {6} should have believed evidence of Santosh and Anita, being independent witnesses. It is further submitted that the complaint, which was submitted by the appellant, should have been forwarded through proper channel. It is further submitted that the findings recorded by the School Tribunal are without application of mind. The findings recorded by the School Tribunal are perverse. The School Tribunal is not correct in holding that the evidence of the witnesses is stereo type. In fact the witnesses have stated different versions in their statements. It is further submitted that, if the School Tribunal reached to the conclusion that the Committee is not properly constituted, in that case, the findings / report of the Committee need not have been considered and the Tribunal should have given liberty to the petitioner-Management to make fresh inquiry after constituting proper Committee. According to the learned Counsel for petitioners, the School Tribunal should not have proceeded to decide the matter on merits, if the Tribunal was convinced that the Committee is not properly constituted as per Rules and, therefore, the inquiry conducted by the Committee is vitiated, in that case, the petitioner-Management should have been given an opportunity to further constitute the Committee and make afresh inquiry. Learned Counsel for the petitioners pressed into service the reported judgment of the Apex Court in the case of U.P.State Spinning Co.Ltd. Vs. R.S.Pandey and another, reported in (2005) 8 SCC 264, and submitted that the Tribunal should not mechanically set aside punishment order on the ground {7} that the Committee is not properly constituted. Learned Counsel invited my attention to para 25 of the said judgment and submitted that when the forum comes to the conclusion that due to some technical reason the enquiry conducted by the Committee is vitiated, in that case, the concerned forum should direct reinstatement of the employee with liberty to the authority / Management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry. 7 Learned Counsel further submitted that in the absence of any specific pleadings, prayers and evidence brought on record, the School Tribunal should not have granted back wages to the Respondent No.3. In support of this contention, learned Counsel placed reliance upon the reported judgments of the Supreme Court in the case of J.K.Synthetics Ltd. Vs. K.P.Agrawal and another, reported in (2007) 2 SCC 433 and in the case of Kendriya Vidyalaya Sangathan & another Vs. S.C.Sharma, reported in 2005 (2) SCC 363, and also reported judgment of this Court in the case of Zilla Parishad, Gadchiroli & another Vs. Prakash s/o Nagorao Thete & another, reported in 2009 (4) Mh.L.J. 628. Learned Counsel submitted that the School Tribunal has considered the oral arguments of the Counsel appearing for the appellant and granted back wages. In fact, the law laid down by the Supreme Court and also by this Court is that, there should be specific pleadings, prayer and also evidence on {8} record and thereafter only the Court / Tribunal should adjudicate the said issue and award back wages. However, in the instant case, admittedly there are no pleadings, prayers or evidence brought on record by the appellant – Respondent No.3 herein and, therefore, in the absence of such pleadings, prayer or evidence, no back wages should have been granted to the appellant. Learned Counsel also invited my attention to the pleadings in the petition, grounds therein, annexures thereto and also other documents, written notes of arguments and submitted that this writ petition deserves to be allowed. 8 On the other hand, learned Counsel for the Respondents, relying upon averments and grounds taken in the appeal memo, submitted that writ petition is devoid of any merits and same deserves to be dismissed. 9 Learned Counsel appearing for Respondent No.3 – original appellant has invited my attention to Section 4(6) and Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, ‘M.E.P.S. Act’). He has also invited my attention to the general powers and procedure laid down in Section 10 of the said Act. It is, however, submitted that the powers vested with the School Tribunal are like any other Civil Court which are traceable in the Civil Procedure Code. Learned Counsel, in support of his contention, placed {9} reliance upon the reported judgment of the Full Bench of this Court in the case of Saindranath Jagannath Jawanjal Vs. Pratibha Shikshan Sanstha & another, reported in 2007 (3) Bom.C.R. 527. Learned Counsel has also invited my attention to the provisions of Section 11 and submitted that in sub-section (2) of Section 11, provision is made for granting relief to the parties and, therefore, the School Tribunal, by exercising powers under Section 11 of the M.E.P.S. Act, has granted the relief. Learned Counsel further submitted that since 1995, Respondent No.3 i.e. original appellant is in service of the petitioner-Management, however, service book is not prepared and seniority is also not fixed. It is also submitted that the date for appointment for the post of Head Master may be reckoned from acquiring D.Ed. qualification. It is submitted that the petitioners wanted to deprive the appellant from the post of Head Master and therefore, they have terminated services of the appellant without her fault. 10 Learned Counsel invited my attention to page no.322 of the compilation of the writ petition and submitted that the petitioners were demanding share in the salary. It is submitted that the school building and residence of the Trustee is in the same premises. The taxes and water charges are not only in respect of school building but even the facilities used at the residence of Trustee are also taxed by the authorities and the Management wanted to recover the said amount from the {10} employees. It is submitted that the Management, with a mala fide intention, issued 37 memos to the appellant. The service record of the appellant is unblemished. It is further submitted that only in extraordinary situation, the Management can suspend the employee without prior approval of the Education Officer. In the instant case, there was no any extraordinary situation, however, the Management on 14.11.2006, terminated services of the appellant and, therefore, such suspension was without prior approval of the Education Officer and as such was illegal. Learned Counsel also invited my attention to the provisions of Rule 35 of the M.E.P.S. Rules, 1981 and contended that for suspension prior approval of the Education Officer is must, unless there is extraordinary situation not to take such prior approval. Where prior approval is not taken, ex post facto sanction from the Education Officer for such suspension is necessary. However, in the instant case, the Education Officer has declined to grant any approval for such suspension. On the contrary, the Education Officer appointed the Committee to look into the affairs of the Society and make enquiry and accordingly the Committee was constituted and Administrator was appointed for three years by the Education Officer to look after the Management of the Petitioner- Trust. 11 Learned Counsel further submitted that the Inquiry Committee was not properly constituted. The Chairman of the {11} Committee is daughter of Mrs.Bagade. There is total influence on the Management by Bagade family. Six relatives of Mrs.Bagade are in the Management of the petitioner-Trust. The entire approach of the Management was biased against the appellant since the appellant declined to contribute money demanded by the Management. It is further submitted that the Management did not file any application before the School Tribunal that they want to reconstitute the Committee and then hold the enquiry, rather the Management continued the enquiry with the two members, though the Committee was consisting of three members. In fact, the report of the Committee should have been signed by three members, however, the said report is signed by only two members. The nominee of the appellant Mrs. Sulbha Mundhe was not allowed to participate in the inquiry proceedings, however, this Court directed to allow her to participate in the proceedings of the Committee and thereafter she was allowed to participate in the inquiry conducted by the Committee. It is submitted that out of five witnesses, which were examined by the Management, three are relatives of Mrs.Bagade. It is further submitted that the mandate of sub-rule (3) of Rule 37 was not followed by the Inquiry Committee. 12 Learned Counsel further submitted that the School Tribunal is empowered and has jurisdiction to go into all aspects of the matter and to inquire even into the charges, to record the {12} evidence and to render findings. Therefore, it cannot be said that the School Tribunal should not have proceeded further to record evidence on each aspect, if the Tribunal was convinced that the Inquiry Committee is not properly constituted and, therefore, the findings / report of the said Committee is vitiated. In fact, the School Tribunal has powers and jurisdiction to entertain all points raised before it. Learned Counsel, in support of this contention, placed reliance upon the Full Bench judgment of this Court in the case of Saindranath Jagannath Jawanjal Vs. Pratibha Shikshan Sanstha & another, reported in 2007 (3) Bom.C.R. 527 (supra) and also reported judgment of learned Single Judge of this Court in the case of Yavatmal Islamia Anglo Urdu Education Society & another Vs. Mujib Ahmed Abbas Ali and another, reported in 2010 (1) ALL MR 810. Therefore, according to the learned Counsel appearing for the appellant, the School Tribunal has not only held that the Committee was not properly constituted, but has given categorical findings on merits of the matter and ultimately reached to the conclusion that the charges levelled against the appellant are disproved. Therefore, in case the charges are disproved, if the contention of the petitioners is accepted that the Management should be given further opportunity to make inquiry, it would be allowing the inquiry of those charges which are disproved by the competent judicial forum. The School Tribunal is a competent forum having jurisdiction to decide all issues and once such forum has decided the issues raised before it and has even given {13} categorical findings on each aspects, in that case, the appellant should not be again subjected to inquiry. Therefore, according to the learned Counsel for the appellant, when the School Tribunal has recorded its findings on each aspects after taking into consideration evidence brought on record by the parties, and reached to the definite conclusion and allowed the appeal and awarded back wages, and such findings are not perverse, in the facts of this case, this Court may not interfere in the writ jurisdiction in the judgment and order passed by the School Tribunal. 13 Learned Counsel appearing for appellant – Respondent No.3 herein would submit that the back wages are rightly granted by the School Tribunal. The provisions of Section 11 of the M.E.P.S. Act would make abundantly clear that, granting of such relief is a consequential relief. Once termination order is set aside, consequences are followed. There is specific provision under Section 11 of the M.E.P.S. Act and, therefore, the School Tribunal, taking recourse to the said provision, has awarded back wages and, therefore, this Court may not interfere in the order of the Tribunal granting back wages to the appellant. 14 Learned Counsel invited my attention to para 40 of the judgment of the School Tribunal and submitted that during the course of arguments, it was argued that the appellant was kept {14} under suspension from 14.11.2006 till this date. She was not gainfully employed anywhere during this period and hence she is entitled for back wages from the date of her suspension. There was no rebuttal argument by the other side and, therefore, the School Tribunal held that the appellant is entitled for back wages. Therefore, relying upon the observations / findings recorded in para 40 of the impugned judgment, learned Counsel for the appellant – Respondent No.3 herein would submit that the back wages are rightly awarded by the School Tribunal and, therefore, this Court may not interfere. It is submitted that granting of back wages is a consequential relief. The termination of services of the appellant was illegal and consequently same came to be set aside and, therefore, back wages are rightly awarded. Learned Counsel has invited my attention to the reported judgment of the Supreme Court in the case of M/s Hindustan Tin Works Pvt. Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others, reported in AIR 1979 SC 75. Relying on the said judgment, Counsel for the appellant – Respondent No.3 herein, would submit that if the services are illegally terminated either by dismissal, discharge or retrenchment, the employee / workman will be entitled to full back wages except to the extent he was gainfully employed during enforced idleness, in case such termination/dismissal, discharge or retrenchment is set aside. 15 Learned Counsel has further invited my attention to {15} another judgment of the Supreme Court in the case of U.P.State Spinning Co.Ltd. Vs. R.S.Pandey and another, reported in (2005) 8 SCC 264, and submitted that once the illegal termination is set aside, the necessary consequence would be that the employee is entitled for the consequential relief. Therefore, the School Tribunal has rightly awarded the back wages. The learned Counsel has also placed reliance on the notes of arguments reiterating the grounds taken in the appeal memo, oral arguments advanced before this Court and also the law declared or pronounced by the Supreme Court and this Court in the following judgments: I Yavatmal Islamia Anglo Urdu Education Society & another Vs. Mujib Ahmed Abbas Ali & another, reported in 2010 (1) ALL MR 810; II M/s Hindustan Tin Works Pvt Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & others, reported in AIR 1979 SC 75; III State of Kerala & Others Vs. E.K.Bhaskaran Pillai, reported in AIR 2007 SC 2645; IV Saindranath Jagannath Jawanjal Vs. Pratibha Shikshan Prasarak Mandal & another, reported in 2007 (3) Bom. C.R. 527; {16} V Awdhesh Narayan K. Singh Vs. Adarsh Vidya Mandir Trust, reported in 2004 (1) ALL M.R. 364 (FB); and VI Vidya Vikas Mandal & another Vs. Education Officer & another, reported in 2007 (2) ALL MR 461. 16 It is further submitted that in the present case, taking benefit of Rule 37(3), purported absence of member nominated by the appellant/delinquent, two members proceeded with and completed the inquiry and its correctness and deliberateness is decided by the Tribunal. Therefore, present case is different and law declared in Vidya Vikas Mandal & another Vs. Education Officer & another, reported in 2007 (2) ALL MR 461 (supra) may not be applicable in the present case, since, in that case, provisions of Rule 37(3) of the M.E.P.S. Rules is not considered. Therefore, the present case is different by its facts and circumstances. It is further submitted that the Management cannot be permitted to take a ’premium’ of its own and deliberate, wilful wrong. Therefore, relying upon the averments in the appeal, grounds taken therein, other annexures thereto, certain documents from original record, findings recorded by the School Tribunal, written notes of arguments placed on record before this Court and various pronouncements of this Court and Supreme Court, cited supra, learned Counsel for the appellant – Respondent No.3 herein would submit that the writ petition is devoid of any {17} merit and same may be dismissed. 17 Learned Counsel appearing for Respondent No.2 – Education Officer (Primary), Zilla Parishad, Aurangabad, invited my attention to affidavit-in-replies filed by Respondent No.2 and submitted that so far as question of seniority is concerned, same cannot be adjudicated in the present proceedings. The aggrieved teacher has filed writ petition in respect of seniority and certain directions are issued in that respect. It is further submitted that so far as payment of back wages to the appellant is concerned, the Education Officer did not grant approval to the suspension of the appellant and, therefore, it is the responsibility of the Management to pay back wages, if they have illegally suspended and subsequently terminated services of the appellant. 18 The learned Assistant Government Pleader, appearing for Respondent No.1-State, neither filed any reply nor advanced any arguments. 19 With the assistance of learned Counsel appearing for respective parties, I have perused the impugned judgment and order passed by the School Tribunal. I have also perused the documents placed on record, grounds taken in the appeal memo, annexures to the appeal, grounds taken in the writ petition, annexures thereto and other documents placed on record by the {18} respective parties. On careful perusal of the impugned judgment and order passed by the School Tribunal, certain relevant facts are necessary to be mentioned hereinafter. 20 Respondent No.3 is a duly appointed teacher and she has completed her probation period and she is deemed permanent employee. The school is recognised and receives 100% grants-in- aid. Head Mistress Smt.Bhimavati Bagade is President of the Trust. Her daughter Sonia Dulichand Bagade is Secretary of the Trust. The school was run in the premises owned by Shri Dulichand Bagade, who happened to be husband of Head Mistress and President of the Trust and father of Sonia Bagade (Secretary). The record shows that said premises are rented premises. As per the report of fact finding Committee, the School is opened in the year 1991-92. It is also not disputed by the petitioners herein that rent of the premises was due and so Head Mistress made call for financial help and for contributing funds to the staff members of the school, to pay tax amount to the tune of Rs.79,974/-. The appellant and other teachers responded to the said call, however, it appears that subsequently, they refused to contribute regularly. The School Tribunal, from perusal of the record, found that some of the staff members have contributed Rs.500/- per month, however, subsequently they declined to contribute the amount to be