Case: JAI BHAVANI SHIKSHAN PRASARAK MANDAL Vs. RAMESH &amp; ORS

3. The appellant is an Educational Society registered under the Bombay Public Trusts Act. It is running an institute of Pharmacy at Gadhi Georai Dist., Beed. In the year 1991, the first respondent herein was appointed as the Principal of the said Institute. In the year 2004 disciplinary proceedings were initiated against him on certain allegations of serious nature. The Departmental Inquiry Committee held an inquiry in which the first respondent was given all opportunities of fair hearing, including permission to be represented by a lawyer. After the completion of the inquiry, the Inquiry Committee submitted a report on 31.07.2004 holding 7 out of 10 charges proved. Therefore, after issuing a show cause notice enclosing a copy of the Inquiry Report, the Management passed an order dated 19.08.2004 imposing upon the first respondent, the penalty of removal from service.       4. The first respondent challenged the penalty before the School Tribunal by way of an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the Act). The School Tribunal framed five issues as arising for consideration namely: (i) Whether the Inquiry Committee constituted by the Management to conduct further inquiry against the employee was proper, legal and permissible by law? (ii) Whether the Management did not pay subsistence allowance and whether non--payment of subsistence allowance vitiated the inquiry?; (iii) Whether the inquiry was vitiated on account of the fact that the Management conducted the inquiry by engaging a lawyer?; (iv) Whether the Management conducted the inquiry by following Rule 37 of MEPS Rules, 1981?; and (v) Whether the impugned dismissal order was legal and sustainable in law. Out of these five issues, the Tribunal found only the issue relating to the constitution and composition of the Inquiry Committee to be not in accordance with the Rules. Therefore, the said appeal was allowed by the Tribunal by an order dated 22.06.2006, primarily on the ground that the constitution of the Inquiry Committee was not in accordance with Rule 36(2)(b) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the MEPS Rules).        5. The appellant--Management filed a writ petition in WP No.5387 of 2006 on the file of the High Court of Judicature at Bombay, Aurangabad Bench. A learned Judge of the High Court dismissed the writ petition, affirming the view taken by the School Tribunal.        6. The intra--court appeal filed by the appellant--Management was dismissed by the division Bench, by placing reliance upon the decision of the Full Bench of the High Court in National Education Society, Nagpur and another vs. Mahendra, s/o Baburao Jamkar and another 2007(3) Mh.L.J 707. Aggrieved by the said order the Management is on appeal before us.

Reasoning: 11. In the case on hand, there is and there can be no dispute about the fact that the first respondent was the Head within the meaning of the expression in terms of Section 2(9) of the Act, as he was the Principal of the Institute. But admittedly the first respondent was not the Secretary, Trustee or Correspondent of the Institute, to fall within the definition of the expression Chief Executive Officer under Rule 2(1)(c) of the Rules.12. The main contention of the first respondent which was accepted by the School Tribunal and the High Court was that by virtue of Rule 36(2)(b) of the Rules, the President of the Management should have been one of the members of the Inquiry Committee. There is no dispute about the fact that the President of the appellant--Society was not a member of the Inquiry Committee. But this fact provides only one part of the story.16. Unfortunately the School Tribunal as well as the High Court failed to take note of the very pleadings of the first respondent with regard to the circumstances in which the President of the Society could not continue as part of the Inquiry Committee. Therefore, the order of the School Tribunal was vitiated by perversity.18. The interpretation given by the School Tribunal and the High Court to the aforesaid Rule would have been acceptable, if Rule 36(2)(b) had began only with the words in the case of the Head. But it begins with the words in the case of the Head referred to in Sub--rule (1).19. Sub--rule (1) refers to the Head who is also the Chief Executive Officer. Therefore, clause (b) of Sub--rule (2) of Rule 36 should be construed to apply only to a person who is the Head and who is also the Chief Executive Officer. Otherwise the words referred in Sub--rule (1) appearing in clause (b) would become redundant.20. The Division Bench of the High Court relied upon the full Bench decision of the High Court in National Education Society (supra), to come to the conclusion that irrespective of whether the Head of the Institute is also the Chief Executive Officer or not, Rule 36(2)(b) mandates the President to be a member of the Inquiry Committee. A perusal of the Judgment of the Full Bench of the High Court of Bombay in National Education Society (supra) shows that the full Bench framed two questions for its consideration. Question No.2 framed by the Full Bench reads as follows:-Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2) (b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981.21. The above question was taken up for consideration by the full Bench in Paragraph 17 of its decision. In paragraphs 18 and 19, the full Bench held as under:-18. Rule 36(1)(a) of the Rules provides for constitution of Inquiry Committee in respect of an employee while Rule 36(2)(b) provides for constitution of Inquiry Committee for the Head. We have already quoted the definition of Head in terms of Section 2(9) of the Act. If it is held that there is no requirement for the President of the management to be a member of the Inquiry Committee in case of the Head who is not the Chief Executive Officer, providing separate Inquiry Committee for the Head in Rule 36(2)(b) would be nugatory. In case such an interpretation is accepted Head of the school would be an employee for the purposes of Rule 36(2)(a) and there was no need to have separate constitution of Inquiry Committee in terms of Section 36(2)(b). It is well settled that the Legislature does not use any word unnecessarily. It would be appropriate to quote paragraph 9 of the judgment of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported in MANU/SC/0077/1987 : [1987]3SCR317. In para 9, the Apex Court observed as under:…Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily….19. We, therefore, hold that in case of Head whether or not he is empowered to act as Chief Executive Officer, the President of the management shall be a member of the Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the Rules of 1981.22. As could be seen from the portion of the Judgment extracted above, the full Bench was unduly carried away by the fact that the Head of an Institution will become equated to an employee, if it was held that the President of the Society need not be a member of the Inquiry Committee. But what the Full Bench omitted to take note of was that the Chief Executive Officer of a Society, such as the President, Secretary or Treasurer cannot be an employee of the Institution run by the Society and that a Chief Executive Officer such as the President or Secretary is liable to get elected and not entitled to remuneration. On the other hand, the Head of the Institution is essentially an employee who is entitled to remuneration, seniority, promotion, continuance in service till the age of superannuation etc., and who is subject to the disciplinary control of the Management. In fact the President or Secretary of the Society cannot be removed under the MEPS Rules. But the Head of the Institution can be removed only in terms of the Rules. Therefore, the interpretation given by the Full Bench of the High Court of Bombay in National Education Society (supra), under Rule 36(2)(b) may not be correct.23. In any case, the High Court, in the impugned order, failed to take the note of doctrine of necessity. Once it is admitted, (i) that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and (ii) that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play. Hence the impugned orders of the High Court and the School Tribunal are liable to be reversed.