Anandrao Dhaniram Shivankar vs Sarvangin Shikshan Sanstha & Ors.

The present petition is filed in order to challenge judgment and order dated 15.03.2022 passed by the learned Presiding Officer, School Tribunal, Nagpur, dismissing School Tribunal Nagpur Appeal No. 33/2017 which was filed by the present Petitioner in order to challenge order of termination dated 21.04.2016. Respondent No.1 is a Public Trust registered under the Maharashtra Public Trust Act, 1950. It runs Ashram School namely Birsa Munda Adivasi Ashram School, Kosambi, Tahsil Deori, District Gondia which is recognized by the Tribunal Welfare Department of Government of Maharashtra and is admitted 100% grant-in-aid. It is the case of the Petitioner that he was appointed on the post of trained graduate teacher in the said school by following the prescribed procedure and after completion of 2 years service, he had attained status of a permanent employee. The Petitioner contends that earlier the school was run by another trust named Jaisewa Bahuddeshiya Shikshan Sanstha. It is stated that in view of certain misconduct by Headmaster of the School, recognition of the school was initially withdrawn and thereafter the school was transferred to the Respondent No.1/Management in the year 2011. The Petitioner has stated that he was appointed as In-charge-Headmaster in the School by the Respondent No.1. The Petitioner states that services of all employees in the Ashram School were terminated by the Management, with the Petitioner being the sole exception. He states that the other employees had approached the State Authorities against the Respondent/ Management ventilating their grievances, which gave rise to a suspicion in the mind of the Management that the Petitioner was backing the said employees and was instrumental in getting complaints lodged against the Management. The Petitioner states that in view of the above the Management decided to terminate his services.

The Petitioner raised several contentions before the learned School Tribunal, such as the State-awardee Teacher not being competent to be nominated on the Inquiry Committee, the procedure of inquiry not being duly followed, denial of opportunity to cross-examine the Management witnesses, and non-grant of adequate opportunity to lead evidence. The Petitioner also raised a contention that, since he was holding the post of Headmaster, the statement of allegations and charge-sheet ought to have been issued under the signature of the President. The Petitioner further contended that the Management representative and Convener, Mr. Amit Halmare, was not a Member of the Management Committee, and therefore the constitution of the Inquiry Committee itself was vitiated. Apart from this, it was contended that the inquiry was initiated with preconceived bias against the Petitioner, inasmuch as although the statement of allegations was issued on 16.08.2015, the decision to initiate inquiry against the Petitioner had already been taken on 13.05.2015 and again on 09.08.2015. It is contended that the Chief Executive Officer of the Management must first issue a statement of allegations, and if he is not satisfied with the reply, then he is required to place the same before the Management, thereafter, the Management, by taking into consideration the reply, may decide whether an inquiry should be initiated or not. The contention is that, in the present case, such a decision was already taken by the Management even before the statement of allegations was issued. The Petitioner contends that the termination is tainted with preconceived bias and that the inquiry was conducted merely to make a show of compliance with the principles of natural justice. It is also contended that notices of the Inquiry Committee meetings were not issued to the Petitioner and, most importantly, that the summary of proceedings was not sent in order to call for an explanation from the Petitioner on the material gathered during the course of inquiry. It is therefore contended that the decision to terminate the services of the Petitioner was taken without affording him an opportunity to furnish a reply to the material gathered against him in the inquiry.

Per-contra, it is the case of Management that inquiry is conducted strictly in accordance with principles of natural justice and the procedure prescribed under the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short ‘M.E.P.S. Rules). The contention that the statement of allegations and other notices in the inquiry were not served upon the Petitioner, is denied. With respect to the contention that the statement of allegations and charge-sheet were required to be issued under the signature of the President, it is contended that the Petitioner was never appointed as Headmaster of the School and that merely the charge of Headmaster was given to the Petitioner. It is further contended that the constitution of the Inquiry Committee was proper. As regards the contention relating to the decision to initiate inquiry against the Petitioner prior to issuance of the statement of allegations, it is contended that the case of the Petitioner regarding termination being an outcome of preconceived bias is incorrect.

The learned Advocate for the Respondent No.1 states that the Management had initially taken a decision to place the Petitioner under suspension, for which steps to obtain permission from the competent authority were required to be taken in accordance with Rule 33 of the M.E.P.S. Rules. Accordingly, a resolution in this regard was passed on 13.05.2015. It is stated that permission to place the Petitioner under suspension was granted on 15.07.2015, and thereafter the statement of allegations was issued on 16.08.2015. It is contended that, after the explanation dated 29.08.2015 furnished by the Petitioner was found to be unsatisfactory, the same was placed before the Management, which in turn took a final decision to conduct inquiry against the Petitioner on 15.09.2015. It is stated that, in all, 20 meetings were conducted in which 19 witnesses were examined by the Management, and the Petitioner, was also granted opportunity to lead evidence. The contention that notices of the inquiry proceedings and proceedings for calling final explanation were not issued to the Petitioner is denied. In this regard, attention is drawn to various notices, service of which was disputed by the Petitioner and to the replies furnished by him thereto.

At the outset, it must be noted that although initially Mr. Shende, the learned Advocate for the Petitioner, vociferously argued that the signatures of the Petitioner were forged and fabricated by the Management on various notices stated to have been served by hand-delivery, and particularly on the postal acknowledgment under which the summary of proceedings was forwarded to him under Rule 37(5) for calling explanation, the learned Advocate did not press the said contention. The learned Advocate for the Respondent/Management pointed out the replies furnished by the Petitioner to various notices, the receipt of which had been disputed. The learned Advocate for the Petitioner had initially contended that the signatures on the acknowledgments were forged. However, on being confronted with the replies furnished to the notices, he did not press the said contention further. It will also be pertinent to state that the notices upon the Petitioner through registered post are shown to be served at the School address which is in Gondia District. However the seal of the postal Department mentions the name of District as Bhandara. Initially Gondia was a part of Bhandara District. Gondia has separated from Bhandara District in the year 1999. In view of above, Mr. Shende initially contended that the postal acknowledgment on record, particularly the one with respect to forwarding the summary of proceedings, was bogus. However, Mr. Jibhkate produced all the original documents. It was found that the Petitioner had furnished replies to some of the letters sent by registered post at the same address, and that the acknowledgment mentioned the name of the District as Bhandara instead of Gondia. In view of the aforesaid, Mr. Shende, in fairness, did not press the contention with respect to the postal acknowledgment being false, nor the contention regarding fabrication of signatures on the postal acknowledgment and other acknowledgments.

As regards the contention that the statement of allegations and charge-sheet should have been issued by the President since the Petitioner was working as Head of the school, the said contention cannot be accepted. The Petitioner was appointed as Assistant Teacher. There is no document on record to indicate that he was appointed as Headmaster. Material on record will only indicate that he was given charge of the post of Headmaster which is not the same as being appointed as Headmaster. Apart from this, statement of allegations and charge-sheet are required to be issued by the President only in cases where the head is also Chief Executive Officer of the Management. Reliance in this regard can be placed on judgment in the case of Jai Bhavani Shikshan Prasarak Mandal v. Ramesh and Others (2022) 13 SCC 148. The perusal of the memorandum of appeal will demonstrate that the Petitioner did not even contend that he was also Chief Executive Officer of the Management.

As regards the contention that Mr. Amit Halmare was not President of the Trust, the said contention also cannot be accepted. The Respondent/Management has placed various documents on record with respect to the appointment of Mr. Amit Halmare as President of the Trust. It will be pertinent to state that, during the course of inquiry, no objection in this regard was raised by the Petitioner. The Petitioner cannot be permitted to raise such objection after completion of the inquiry. Even otherwise, the objection is without merit in view of the material placed on record by the Management to substantiate the appointment of Mr. Amit Halmare as President. It must also be stated that it is by now well settled that merely because the names of Trustees/office bearers of a Public Trust are not recorded in Schedule-I of the Public Trust Register, it does not mean that the Trustees/office bearers cannot function as such. Reliance for this can be safely placed on judgment in the case of Vijay K. Mehta v. Charu K. Mehta (reported in 2008(5) MhLJ 853).

The record of inquiry also indicates that 19 witnesses were examined by the Management. The Petitioner was granted several chances for conducting their cross-examination. The proceedings in the inquiry were adjourned from time to time for the purpose of cross-examining the Management witnesses. In fact, opportunity to conduct cross-examination was granted on seven dates, namely 15.01.2016, 16.01.2016, 17.02.2016, 21.02.2016, 22.02.2016, 01.03.2016, and 09.03.2016. Despite this, the Petitioner failed to cross-examine the Management witnesses. Likewise Petitioner tried to examine certain witnesses on his behalf. Three of the witnesses refused to record their statements before the Inquiry Committee stating that their names were mentioned as witnesses without their consent. The Petitioner has examined himself and two other witnesses.

Now coming to the contention with respect to preconceived bias, which was vehemently argued by Mr. Shende, the contention is that the decision to initiate inquiry was taken even prior to the issuance of the statement of allegations. In this regard, it must be noted that the procedure contemplated for initiation of inquiry for imposing major punishment is that, when the Management deems it fit to conduct an inquiry against an employee of a private school, the Chief Executive Officer of the Management, or in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management, must issue a statement of allegations calling upon the employee to furnish his explanation within seven days. The reply if any must be considered by the Chief Executive Officer or President and if the same is found to be unsatisfactory, the same must be placed before the Management. The Management thereafter takes a decision upon consideration of statement of allegations and reply as to whether or not inquiry should be conducted. In the case at hand, the record will indicate that prior to issuance of statement of allegations, there are two resolutions passed by the Management regarding initiation of inquiry against the Petitioner. These resolutions are dated 13.05.2015 and 09.08.2015, whereas the statement of allegations is dated 16.08.2015. In this regard, it must be stated that the Management was contemplating placing the Petitioner under suspension. Rule 33 of the M.E.P.S. Rules contemplates prior permission of the Education Officer (Tribal Welfare Officer in the present case, since the school is recognized by the Tribal Department) before an employee can be placed under suspension. It is in this context that the earlier resolution dated 13.05.2015 was passed. The principal object behind the said resolution was to obtain permission for placing the Petitioner under suspension. The record indicates that permission was infact granted on 15.07.2015. Thereafter another resolution came to be passed on 09.08.2015. The said resolution is for issuance of statement of allegations in which there is mention of proposed inquiry against Petitioner. The statement of allegations thereafter issued on 16.08.2015 and after considering the reply resolution for placing the Petitioner under suspension is passed on 15.09.2015. Thereafter resolutions have been passed with respect to the constitution of the Inquiry Committee and the framing of the charge-sheet.

Normally, an employer is competent to take a decision regarding disciplinary action to be taken against an employee. There are provisions under different enactments which provide that such action should not be taken by the employer without following the principles of natural justice. However, the scheme of the M.E.P.S. Rules makes a departure from these general principles. Under the scheme of M.E.P.S. Act and Rules in case disciplinary action is to be taken against an employee of a private school, the Management/employer can take appropriate decision for initiating disciplinary proceedings. The inquiry is required to be conducted by a three-member Committee: one member from the Management, the second, a State-awardee Teacher to be appointed by the Chief Executive Officer; and the third, a representative of the employee himself. Ordinarily, even in cases where penal action is required to be taken after conducting an inquiry, the employer takes a decision based on the findings recorded by the Inquiry Officer or Committee. However, under the scheme of the M.E.P.S. Rules, the decision-making power is vested in the Inquiry Committee. The Management is merely required to follow the decision taken by the Inquiry Committee. As stated above, the Inquiry Committee comprises three members, including the representative of the employee himself.

Thus although the Management may take a decision to initiate appropriate disciplinary action, it does not have the authority to decide whether any action should ultimately be taken or not. This decision has to be taken by the Inquiry Committee and the Management merely follows this decision. It will be appropriate to refer to the judgments of this Court in the cases of Pralhad Madhoba Ruikar Trust v. Director of Education, reported in 2006 (5) MhLJ 64 (Paragraph 5) and the Secretary Ahilyabai Holkar Shikshan Prasarak Mandal and another Vs Venkatrao Dnyanoba Mane And Anr. reported in 2024(4) BCR 237(Paragraph 20). In view of the above, it cannot be said that the decision of Management is bad on account of preconceived bias. The Management does not have authority to take final decision in the matter. The contention of Mr. Shende that the inquiry is vitiated on this ground therefore, cannot be accepted. The punishment of termination is decided by the Inquiry Committee and the Management has implemented the decision. It must be reiterated that the Inquiry Committee granted all possible opportunities to the Petitioner to conduct cross-examination of the Management witnesses and to lead independent evidence. The Inquiry Committee also forwarded the summary of proceedings to the Petitioner for submitting his reply. The Petitioner did not avail of these opportunities. Therefore, in the peculiar facts of the case, the contention of Mr. Shende that the inquiry was initiated on account of preconceived bias cannot be accepted.

In the light of the reasons stated above, and in the considered opinion of this Court, no case for interference is made out. The Writ Petition is, therefore, dismissed with no order as to costs.