Kamta Prasad vs Kalyan Municipal Corporation and Others

S.H. Kapadia, J.—By this Writ Petition, the petitioner seeks to challenge the Order of dismissal dated 12th/13th October, 1995. He also seeks reinstatement with back wages from 1st October, 1995 with continuity of service, benefit of seniority and all other benefit.

The facts giving rise to this Writ Petition, briefly, are as follows:

Petitioner was appointed as an Assistant Teacher from 6th November, 1987. He was confirmed on May 8, 1990. He applied for leave in February, 1994 for twenty days on health grounds. However, on resumption, he was not allowed to sign the Muster Roll.

On June 3, 1994, petitioner was charge-sheeted, inter alia, on the grounds of unauthorised absence, insubordination and rude behaviour with superiors and on the ground that the petitioner had made mistakes in assessing answer papers of the students. In the course of enquiry, the petitioner requested the Management to supply copies of the necessary documents on which the Management sought to place reliance. He also requested the Management to appoint Defence Representatives to defend his case as per the provisions of the Maharashtra Employees of Private School Regulation Act, 1977 and Rules, 1981 [hereinafter, for the sake of brevity, referred to as "the said Act, 1977"]. However, the Management refused to supply services of Defence Representative to the delinquent. This led to quarrel before the Enquiry Officer for which the petitioner was given a Show Cause Notice on 14th November, 1994 alleging that the petitioner misbehaved before the Enquiry Officer. This Show Cause Notice was given after the charge-sheet came to be issued on June 3, 1994. The Enquiry Officer submitted his Report on 27th November, 1994. The Enquiry Officer found the delinquent guilty. Pursuant to the Report of the Enquiry Officer, the Punishing Authority passed an Order of termination on 12th/13th October, 1995. At this stage, it may be mentioned that the delinquent was suspended pending the enquiry. Against the impugned Order of termination, the present Writ Petition has been filed.

Mr. Vasudev, learned Advocate appearing on behalf of the petitioner, pointed out that in the present matter, the petitioner has been terminated pursuant to the enquiry in which no evidence whatsoever came to be produced. Mr. Vasudev pointed out that no oral or documentary evidence came to be produced and without evidence, the Enquiry Officer has come to the conclusion that the charges stood proved. Mr. Vasudev further pointed out that even the answer books, on the basis of which it was alleged by the Management that the teacher had committed serious mistakes in assessing the answer papers, were not produced before the Enquiry Officer. Mr. Vasudev further pointed out from the proceedings produced before us that one Smt. Chitralekha Bhausar Assistant Teacher was examined on behalf of the Management. He pointed out the proceedings to show that the witness was only asked, against each of the charges, as to whether the contents were true or not and she serially replied in the affirmative. Mr. Vasudev pointed out that the delinquent was justified in refusing to take part in the enquiry because relevant documents were not supplied to the petitioner before the enquiry commenced. Mr. Vasudev pointed out further that after the charge-sheet came to be issued on 3rd June, 1994, the petitioner was given one more Show Cause Notice dated 14th November, 1994 alleging that the petitioner had quarrelled before the Enquiry Officer and even the impugned Enquiry Report gives a finding on the said Show Cause Notice without even giving an opportunity to the petitioner by way of charge-sheet with regard to the incident which took place before the Enquiry Officer. Mr. Vasudev further pointed that under the said Act, 1977, the Management was required to appoint Defence Representative. He also pointed out that under the Rules, 1981, the petitioner''s nominee was also required to sit in the Enquiry Committee. Mr. Vasudev pointed out that in the present matter the said Act and Rules have not been complied with. Mr. Vasudev further pointed out that in the present matter, the Corporation has resorted to the Rules framed under the Corporation Act and not to the Rules framed under the said Act, 1977. Mr. Vasudev further pointed out that even the Disciplinary Authority has merely reproduced the conclusion of the Enquiry Officer. Mr. Vasudev further pointed out that even the Disciplinary Authority has, in any event, not considered the proportionality of the punishment. Mr. Vasudev further pointed out that, in any event, looking to the nature of the charges involved in the present matter, punishment of termination of service was not warranted which fact was required to be taken into account by the Disciplinary Authority. In the circumstances, Mr. Vaisudev has submitted that the present Writ Petition is required to be allowed and the Order of termination is required to be set aside.

Mr. Rao, learned Advocate appearing on behalf of the Corporation contended that in the present matter, the Corporation was not required to hold an enquiry under the said Act, 1977. He pointed out that in the present matter, the Rules applicable to the employees of the Corporation do not require Defence Representative to be supplied to the delinquent. Mr. Rao further contended that in the present matter, the delinquent did not take part in the enquiry and in the circumstances, the Enquiry Officer was entitled to proceed ex parte. Mr. Rao contended that in the present matter, evidence was led on behalf of the Management. He pointed out that the evidence of Smt. Bhausar clearly indicates that the charges stood proved. Mr. Rao further contended that the rules of natural justice have been complied with, Mr. Rao further contended that in the present matter, opportunity was given to the delinquent, but he chose to remain absent. Mr. Rao further contended that the teacher was guilty of committing mistakes in assessing answer books and in the circumstances, the punishment of termination was just, fair and proper looking to the facts and circumstances of the present case. Mr. Rao further contended that a finding of fact has been recorded by the Enquiry Officer and in the circumstances, this Court should not interfere under Article 226 of the Constitution of India.

We find merit in the contentions advanced on behalf of the petitioner. Before the Enquiry Officer, no evidence came to be produced. As stated hereinabove, one of the serious charges levelled against the petitioner was error in assessing the answer books. The said answer books were never produced. The Enquiry Officer has further recorded that the Acting Principal was given all the documents. The Enquiry Officer thereafter called upon Shri Singh, the Acting principal to produce the documents. However, Shri Singh failed to produce the documents and in the circumstances, the Enquiry Officer concluded that the Management has failed to co-operate with the Enquiry work. We have gone through the Report of the Enquiry Officer. Except the above finding, there is no other finding recorded on the charges levelled against the petitioner. On the contrary, on the basis of the said finding stated hereinabove, the Enquiry Officer holds that the charges levelled against the petitioner, stand proved. We have also gone through the proceedings which indicate that only one witness Smt. Bhausar appeared before the Enquiry Officer. Questions were posed to the said witness on each of the charges to the effect as to whether the contents of the charges were correct and answers were given serially by the witness in the affirmative and on that basis, the Enquiry Officer has concluded that the charges stand proved. The Enquiry Report also gives a List of witnesses, other than Smt. Bhausar. However, there is nothing to show as to whether the other witnesses came to be examined before the Enquiry Officer. The charges were read out to Smt. Bhausar and the said witness has answered in the affirmative and on that basis, the Enquiry stands concluded and the delinquent is found guilty. We also find merit in the contention advanced on behalf of the petitioner that copies of the documents were not furnished to the petitioner. The findings of the Enquiry Officer are not even based on any documentary evidence. One more fact needs to be mentioned. As stated hereinabove, pending the Enquiry which commenced with the charge-sheet dated 3rd June, 1994, the delinquent was given a Show Cause Notice on 14th November, 1994 for misbehaving with the Enquiry Officer. There was no charge-sheet given to the delinquent with regard to the incident which took place before the Enquiry Officer. However, in the impugned Enquiry Report, findings are recorded by the Enquiry Officer that he was threatened by the delinquent with arrest by the Police. Ultimately, the Enquiry Officer, on the above basis, holds the delinquent guilty. Even the Disciplinary Authority has not examined the contention of the petitioner that there was no evidence produced before the Enquiry Officer to hold the petitioner guilty of misconduct. The Disciplinary Authority bodily records the conclusion of the Enquiry Officer and pass an Order of termination. We also find merit in the contention advanced on behalf of the petitioner that, in any event, the Disciplinary Authority was required to consider proportionality of the punishment. It is true that under Article 226 of the Constitution if two views are possible, this Court should not interfere under Article 226 of the Constitution. However, in the present matter, we have gone through the entire enquiry proceedings and we are of the view that the said enquiry was sham and findings have been recorded without evidence on record. In the present matter, the enquiry has proceeded ex parte. However, even in such a case, there should have been proper oral and documentary evidence from the side of the Management which, as stated hereinabove, does not exist in the present case. There is no evidence to indicate mistakes committed allegedly in assessing the answer books. There is no evidence on record to indicate insubordination or rude behaviour, as alleged. Even the case of the petitioner that he was on sick leave in February 1991 and that he had furnished the Medical Certificate has not been appreciated by the Enquiry Officer. In the circumstances, the findings of the Enquiry Officer are perverse. Even the Order of termination has not been passed in accordance with law. Hence, we are inclined to set aside the Order of termination.

Mr. Rao, learned Advocate appearing on behalf of the Corporation, however, submitted that the Management should be given an opportunity to hold a de novo Departmental Enquiry, after suspending the petitioner from service, Mr. Rao contended that during the earlier Departmental Enquiry, the petitioner stood suspended. He relied upon the judgment of the Supreme Court in the case of State of Punjab and Others Vs. Dr Harbhajan Singh Greasy, , We do not find any merit in the contentions advanced on behalf of the respondent. Firstly, in the present matter, as stated hereinabove, the Order of termination has been passed without proper enquiry. The findings of the Enquiry Officer are not based on any evidence, either documentary or oral. Even the documents on which the Management sought to place reliance were not furnished to the petitioner. No reasons have been given for coming to the conclusion that charges have been proved. Lastly, looking to the nature of the charges alleged against the petitioner, it would not be proper to once again put the teacher under suspension pending proposed Departmental Enquiry. In the case of Dr. Harbhajan Singh (supra), the delinquent admitted the serious charges levelled against him. However, the delinquent did not admit to the charges in the Written Statement. The admissions were subsequently contradicted. The delinquent retired during the pendency of the Petition; Under the above circumstances, the Supreme Court observed that the proper course was to remit the matter for fresh Enquiry from the stage when the enquiry became irregular. On the fact of the present case, the ratio of the said judgment has no application. In the present case, the delinquent asked for the documents, after the Charge-sheet came to be issued. Documents were not supplied to the delinquent. As stated hereinabove, even the Enquiry Officer has recorded a finding that the Principle has not co-operated in the Enquiry work by producing the documents called for by the Enquiry Officer. In the circumstances, the ratio of the judgment of the Supreme Court in Dr. Harbhajan Singh''s case (supra) has no application to the facts of the present matter.

Under the above circumstances, it is not necessary for this; Court to decide the legal issue raised by the petitioner in this Petition viz. whether the Corporation was required to hold enquiry under the provisions! of the Maharashtra Employees of Private Schools Regulation Act, 1977 or whether the enquiry should be held under B.P.M.C. Act read with the provisions of Maharashtra Civil Service (Discipline and Appeal) Rules. The said issue is kept open.

Accordingly, Rule is made absolute in terms of prayer Clause (a) with costs. However, it would be open to the Management, after reinstating the petitioner, as directed hereinabove, to hold an enquiry, if so advised in accordance with law.

Learned Advocate for the Corporation applies for stay of the above Order. In view of the facts and circumstances mentioned hereinabove, stay refused.

Issuance of certified copy expedited.