Ajaz Ahmed Khan vs Anjuman Ishaat-E-Talim Trust & Ors.

This petition is filed by the petitioner for quashing the departmental inquiry initiated by respondent no. 1 - management by charge sheet dated 2^nd December 2022.

On 10^th January 2023, this Court had directed that pending further orders, the inquiry committee should proceed with the inquiry but not to deliver the final verdict. The relevant paragraphs of the aforesaid interim order reads as under :-

In 1993, the petitioner was recruited as full-time teacher in respondent no. 3 - junior college run by respondent no. 1 – management.

The petitioner and respondent No. 1 – management are embroiled in series of litigation between them.

On completion of 12 years service petitioner claimed benefits under the Time Scale Promotion Scheme, which came to be rejected by the management, and therefore was challenged by the petitioner in Writ Petition No. 7345 of 2010. The said writ petition was allowed and the benefit of time scale promotion was extended to the petitioner.

Respondent no. 1 - management initiated inquiry proceedings against the petitioner for remaining absent from duty without permission during the period 1993 to 1995. The said inquiry came to be challenged by the petitioner in Writ Petition No. 9951 of 2012, and this Court, by order dated 12^th January 2015, allowed the petition by quashing the inquiry. This order was unsuccessfully challenged by the management before the Hon'ble Supreme Court in SLP (C) No. 10523 of 2015. It is also important to note that interim order dated 7^th December 2012 passed in said Writ Petition No. 9951 of 2012 was also challenged by respondent no. 1 - management before the Supreme Court, and the Hon'ble Supreme Court granted leave to respondent no. 1 - management to approach the High Court for vacating the interim relief.

Respondent no. 4 was appointed as headmistress at respondent no. 3 - college and a complaint was made against the petitioner for misbehaving with the said respondent no. 4. In an RTI application, the petitioner was informed that no such complaint was made by respondent no. 4. There are various other litigation between the petitioner and respondent no. 1 - management, which are pending.

A charge sheet was filed against the petitioner on 2^nd December 2022, which is the subject matter of the present petition. There are various allegations made against the petitioner, namely complaint of respondent no. 4, non-participation in ‘Har Ghar Tiranga activity’, grammatical mistakes committed while submitting the leave application, roping certain persons in criminal proceedings, etc. The petitioner was not suspended pending inquiry. It is on the said backdrop that above inquiry came to be challenged by filing the present petition.

Learned counsel for the petitioner submitted that admittedly inquiry was completed on 16^th February 2023, whereas the petitioner retired on 31^st January 2023. It is his submission that once an employee retires, continuation of inquiry is without jurisdiction and therefore the impugned proceedings should be quashed and set aside. He relied upon the following decisions in support of this submission :

Writ Petition No. 5061 of 2006, decided on 10.02.2020.

The learned counsel for the petitioner further submitted that the inquiry committee consists of three persons as per the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (‘MEPS Rules’), whereas respondent no. 1 - management appointed Mr. Ravindra Dahat, 4^th person on the said committee. It is his submission that such a person cannot be inducted in the committee and therefore the constitution of the committee is bad in law and consequently the inquiry proceedings have to be quashed and set aside. He relied upon the decision in this Court in the case of Yogini Bathuwel Parkhe versus State of Maharashtra, Writ Petition No. 1966 of 2020 dated 28^th September 2021, in support of his submission that such a constitution is bad in law.

Learned counsel for the petitioner, thereafter, submitted relying on a letter dated 7^th January 2023 issued by respondent no. 1 - management to the committee, wherein it is stated that respondent no. 1 does not wish to examine any witness. It is his submission that based on this it can be concluded that if they do not wish to examine any witness, that means there is no evidence and therefore the proceedings are ab initio void. He relied on following decision in support of this submissions.

Federation Ltd. and Others; 2026 SCC OnLine SC 505

Learned counsel for the petitioner further submitted that impugned proceedings are nothing but a counterblast and an attempt to take revenge against the petitioner and therefore the same should be quashed and set aside.

Per contra, learned senior counsel for respondent no. 1 -management and learned counsel for respondent no. 4 submitted, relying on Rule 34 (3) of the MEPS Rules, that even if an employee retires, the inquiry can be proceeded with. He submitted that the decisions relied upon by the petitioner have not considered Rule 34(3). Learned senior counsel relied upon the following decisions in support of the submissions which provides for continuation of inquiry post retirement :

The learned senior counsel further submitted that there is no prohibition in Mr. Ravindra Dahat, being appointed to appear before the inquiry committee to receive the communication from the committee and also to give document on behalf of the management. He disputed the submission of the learned counsel for the petitioner with respect to no evidence and animosity. He therefore prayed for dismissal of the petition.

Learned counsel for respondent nos. 2, 3 and 4 adopted the argument of learned senior counsel for respondent no. 1 -management and made similar prayer for dismissal. Learned counsel for respondent no. 3 relying on date of interim order and retirement submitted that the submission made by the petitioner that inquiry cannot be continued after retirement is to be rejected.

Having heard learned counsel for the petitioner and respondents, we propose to deal with same hereinafter:

Relevant rules of MEPS Rules, 1981 for adjudicating the present petition are reproduced herein.

(emphasis supplied)

(emphasis supplied)

Whether the inquiry proceedings initiated against an employee before the retirement can be continued post the date of retirement?

First issue which arises for our consideration is whether the petitioner is justified in contending that when admittedly the inquiry was not completed before the date of retirement, the proceedings are ab initio void. Rule 37 of the MEPS Rules provides for procedure of inquiry. Rule 37(1) prescribes preparation of chargesheet and handing it over to convener of Inquiry committee and employee, along with statement of allegation and explanation of employee, within seven days from constitution of the committee. Rule 37(2) provides that within ten days of the charge sheet, a written explanation shall be submitted to the committee and if the management or the employee desires to examine any witness, the name of witnesses should be proposed or any document is to be relied upon, the same should be supplied within three days of expiry of the said ten days. The inquiry committee shall meet to proceed with the inquiry and within ten days thereafter, call upon the employee or the management to proceed with evidence, examine witnesses, etc. Reasonable opportunity has to be extended to the employee for defending his case and the management would also have a right to lead the evidence. It is also provided that the inquiry shall be completed preferably within a period of 120 days from the date of first meeting of the inquiry committee. The period of 120 days is provided since the suspension, as per Rule 35, shall not exceed four months except with prior permission. Four months, when converted into days, works out to around 120 days, and therefore, the Legislature has provided for completion of the inquiry within 120 days. Rule 37(2)(f) provides that the employee who is suspended pending inquiry shall cease to be under suspension and shall be deemed to have rejoined duties, without prejudice to continuation of the inquiry. Other sub-rules are not relevant for the purpose of our discussions.

The submission of learned counsel for respondents, relying on Rule 34(3) of the MEPS Rules, that the Rules provide for continuation of the proceedings even after retirement, cannot be accepted. Undisputedly and admittedly, the petitioner was not suspended, whereas Rule 34(3) covers a case of an employee who is under suspension. The reason why the legislature has provided for continuation of inquiry post-retirement in case of an employee under suspension is because of Rule 37(2)(f). Rule 37(2)(f) provides for a time limit of 120 days to complete the inquiry proceedings, and the period starts from the date of the first meeting of the Inquiry Committee or from the date of suspension, whichever is earlier. This period can be extended with prior approval. Rule 37(2)(f) further provides that in case the inquiry is to be completed within a period of 120 days or within the extended period, then the employee shall cease to be under suspension and shall be deemed to have rejoined the duties, without prejudice to continuation of the inquiry. It is for this reason that a provision is made in Rule 34(3) for continuation of the inquiry after retirement. Rule 34(3) provides that if, during the period of suspension, an employee attains the age of superannuation, then he shall be deemed to have retired on attaining the age of superannuation. Had it not been for this provision, then the superannuation age would have been extended because of Rule 37(2)(f). It is to take care of such a situation that the legislature, in consonance with Rule 37(2)(f), made a provision in Rule 34(3) that even if an employee ceases to be under suspension, he shall be deemed to have rejoined duties, and if, during the period of suspension, he attains superannuation, then he shall be deemed to have retired on attaining the age of superannuation, but the departmental proceedings shall be continued even after his retirement. It is deeming provision. In our view, therefore, the submission made by the respondents, relying on Rule 34(3), to contend that proceedings can continue after retirement, cannot be accepted.

If respondent no. 1 wanted to take the benefit of Rule 34(3), then they should have first suspended the employee before attaining the age of superannuation. In the instant case, admittedly and undisputedly, the employee was not suspended, and therefore, Rule 34(3) cannot assist respondent no. 1 in continuing the inquiry proceedings post-retirement of the petitioner.

The above view is supported by the decision of the Hon'ble Supreme Court in the case of State of Punjab vs. Khemi Ram (1969) 3 SCC 28. In this case, the Hon'ble Supreme Court was concerned with the Punjab Civil Services Rules. An inquiry was initiated against the employee while in employment. Pending completion of the inquiry, the employee attained the age of superannuation. However, on the last date of retirement, the employer issued a telegram suspending him. The telegram was received by the employee after the date of his retirement. The issue that arose before the Hon'ble Supreme Court was whether the employer could continue with the inquiry proceedings after retirement. The Hon’ble Supreme Court permitted the inquiry to go on post retirement. The Hon'ble Supreme Court, in para no. 12, observed:

If Rule 34(3) would not have been there, then it could have been contended that the age of superannuation gets extended because of Rule 37(2)(f), which provides that an employee under suspension shall be deemed to have rejoined the duties, without prejudice to continuation of the inquiry. In our view, the above submissions made by learned counsel for respondents that the proceedings can be continued after the petitioner has attained the age of superannuation cannot, therefore, be accepted.

If the intention of the legislature was to continue an inquiry initiated before retirement even after retirement in all cases, nothing prevented them from making such a provision in the MEPS Rules. The fact that such a provision is made only in the case of a suspended employee shows the intention of the legislature that, in the case of a non-suspended employee, the proceedings cannot be continued after retirement.

The decisions relied upon by the learned counsel for the petitioner in the cases of Shah Babu Education Society, Partur (Supra), Shrikrishna Sitaram Dahare (Supra) and Bhaskar Bhikaji Ingle (Supra) would squarely apply to the facts of the present case. In these decisions, it has been consistently held that the inquiry proceedings cannot be continued after the date of retirement. Though these decisions did not consider the provisions of Rule 34(3), we are of the view that since the employees in those decisions were not suspended, the question of considering Rule 34(3) did not arise. In any case, we have analysed the provisions of Rule 34(3) and have come to the conclusion that, in case of a non-suspended employee, inquiry proceedings cannot be continued after the date of retirement.

Relevant paras of the decisions relied upon by the petitioner are as under:

The decision relied upon by the learned senior counsel for respondent no. 1 would not apply to the facts of the present case, since, in those decisions, the rules which were before the Hon'ble Supreme Court expressly provided for continuation of inquiry proceedings post-retirement in all cases, which is not the case before us. Therefore, those decisions cannot come to the rescue of the respondents for justifying the continuation of the inquiry proceedings.

However, in our view, for the reasons stated hereinafter the submission of the petitioner that the inquiry proceedings are without jurisdiction, since the same has not been concluded prior to the date of retirement, cannot be accepted.

In the present case, the charge sheet is dated 2^nd December 2022. On 10th January 2023, the petitioner pressed for interim relief and this Court, after issuing notice returnable on 20^th February 2023, issued directions adjourning the inquiry to 20^th January 2023, and before that, in the interregnum, the petitioner would select his defense representative and the spacing between two sessions of the inquiry would be minimum of seven days. However, the inquiry committee would not deliver a final verdict until further orders. In our view, on 10^th January 2023, the petitioner very well knew that he would be retiring on 31st January 2023. At the behest of the petitioner the interim order was passed on 10^th January 2023 adjourning the inquiry to 20^th January 2023 and further that gap between two sessions of inquiry would be of minimum seven days.

Looking at the chequered history and the charge sheet between the petitioner and the respondent management and the charges framed, it was very clear that on the date of passing the interim order, the inquiry proceedings would have never been culminated before 31^st January 2023. The notice itself was made returnable on 20^th February 2023.

In our view, the petitioner, after having taken the benefit of interim order in the facts of the present case, cannot be heard to contend that since the inquiry proceedings have not been completed before 31st January 2023, being the date of his retirement, the proceedings are bad in law.

The issue can be examined from another angle. The proceedings spilled over beyond 31^st January 2023 on account of the interim order of this Court, and therefore even on this count, the submission of limitation (completion of inquiry before retirement) made by the petitioner cannot be accepted, but it would be on the contrary saved on account of the interim order passed by this Court. In this case inquiry was completed on 16^th February, 2023, before the returnable date of 20^th February, 2023 and within 15 days of the petitioner having superannuated and, therefore, even on this count, submission of the petitioner is to be rejected.

We may further note that the above ground has not been raised in the petition by way of an amendment but was pleaded across the bar and not objected to by any of the counsel for the respondents.

The second issue which arises for our consideration is with regard to Mr. Ravindra Dahat. The submission of the learned counsel for the petitioner is that as per Rule 36, the committee should consist of three members, namely one from management, one from the employee, and one member chosen from the panel. In the instant case, by letter dated 7^th January 2023, Mr. Ravindra Dahat was authorised to appear as the presenting officer before the inquiry committee to receive the communication from the committee and to give documents on behalf of the management. In our view, by this letter respondent no. 1 - management has not appointed Mr. Ravindra Dahat as a member of the committee. Therefore, submission made by learned counsel for the petitioner that the constitution of the committee itself is bad in law on account of induction of Mr. Dahat cannot be accepted. The decision relied upon by the petitioner in the case of Yogini Bathuwel Parakh, (Supra), therefore does not assist the case of the petitioner. Since in that case more than three (03) person were appointed on committee which is not the case in present matter. The relevant extracts of letter dated 07^th January, 2023 reads as under :-

(emphasis supplied)

It is important to note that even this ground relating to constitution of the committee has not been raised in the petition, but has been argued across the bar to which none of the respondents raised any objection.

The submission of the learned counsel for the petitioner on the ground of no evidence and on the ground of animosity cannot be examined in these proceedings, since it would involve the Court to enter into the arena of disputed questions of fact, which this Court cannot enter into in the present proceedings. We, however, clarify that the petitioner would be entitled to raise these issues if final inquiry report is against the petitioner and if he proposes to challenge.

We make it clear that we have not expressed any opinion on the animosity and on the ground of no evidence in the present order.

In view of the above, the Writ Petition is dismissed,

Rule is discharged,

No order as to costs.

Consequently, the civil applications pending, if any, would not survive and are disposed of.