Lala S/o Arjun Meshram vs Sushant Shikshan Sanstha & Ors.

Heard finally with consent of learned advocates for the respective parties.

The present petition is filed in order to challenge judgment and order dated 31.03.2012 passed by the learned Presiding Officer, School Tribunal, Nagpur, in Appeal No. STN/124/1995, dismissing the said appeal preferred by the present petitioner. The petitioner was appointed on the post of ‘Assistant Teacher’ in Sanjay Gandhi High School, run by respondent No.1 vide order dated 26.06.1989. The respondent No.1 is a public trust registered under the Maharashtra Public Trusts Act, 1950. The school in which the petitioner was appointed is a private school within the meaning of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as “MEPS Act, 1977”). Conditions of service of employees of private schools are governed by the said Act and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as “MEPS Rules, 1981”) framed thereunder. The petitioner will be hereinafter referred as ‘employee’ and the respondent No.1 will be referred as ‘management’.

It is the case of the petitioner that he was appointed on the post of Assistant Teacher vide appointment order dated 26.06.1989. Immediately after four days, he was promoted as Incharge Headmaster. However, that was cancelled after three months. Thereafter, again the petitioner was appointed and was promoted as Supervisor from 24.06.1991 for a period of two years and after completion of two years service, he became the confirmed employee of the respondent school w.e.f. 01.05.1993. The petitioner contends that he had an unblemished service record. It is the case of the petitioner that the management was harassing all the staff members by demanding money from them in the form of donations and several employees including the petitioner were terminated since they did not fulfill the said illegal demand. The petitioner contends that his services were illegally terminated on 29.04.1995 only with a view to harass him for not fulfilling unlawful monetary demand.

The petitioner has contended that the inquiry committee was not properly constituted, procedure for conducting inquiry was not followed, the State Awardee Teacher was not from the panel of teachers maintained by the Education Officer, the Headmaster of the school participated in the inquiry proceeding although he was not member of the inquiry committee and that the president of the management, who had lodged the complaint against the petitioner, was a member of the inquiry committee which by itself vitiates the inquiry since the president acted as a judge in his own cause.

The management defended the termination by stating that the petitioner and some other employees had indulged in gross indiscipline of creating ruckus in the school, manhandling the Headmaster and creating obstruction in smooth functioning of the school. It is contended that the petitioner did not participate in the inquiry, either by conducting cross-examination of the management witnesses or leading his evidence. The other contention with respect to procedure not being followed etc. were also denied. The management denied the contention that the president acted as a judge in his own cause.

After hearing the rival submissions, the learned school Tribunal had dismissed the appeal preferred by the petitioner vide judgment dated 12.04.2001. Said judgment passed by the learned Tribunal dismissing the appeal was assailed by the petitioner by filing a petition being Writ Petition No.2266 of 2002. The petition was partly allowed. This Court observed that the contentions raised by the petitioner that, (i)the president of the management, who had lodged report against the petitioner, could not act as convener and member of inquiry committee, (ii) Headmaster could not attend the meetings of inquiry committee and (iii)Mr. Shende, State Awardee Teacher was not competent to be a member of the inquiry committee since his name was never included in the panel of State Awardee Teacher, although raised were not dealt with by the learned Tribunal. This Court directed the learned Tribunal to hear and decide the appeal afresh by taking into consideration the aforesaid contentions raised by the petitioner.

After remand of the matter as aforesaid, the learned Tribunal heard the respective submissions and once again dismissed the appeal vide judgment and order dated 31.03.2012. The learned Tribunal has observed that there is no material on record to indicate that the president had initiated criminal prosecution against the employees. The objection with respect to eligibility of Mr. Shende to be appointed as State Awardee Teacher was also rejected. With respect to contention regarding the Headmaster of the school attending the inquiry proceeding, it is found that after objection in this regard was raised, he did not attend the proceeding. The learned Tribunal has also recorded that the petitioner kept himself away from inquiry and did not conduct cross-examination of management witnesses and also did not lead any evidence. It is also observed that, after the proceedings of the inquiry were forwarded to him calling for his reply, the petitioner has filed reply, which was taken into consideration by the inquiry committee, although it was filed beyond the prescribed period. As regards the finding with respect to charges framed, the learned Tribunal has recorded that findings were examined by the learned Tribunal in the earlier round of litigation and the petition was remanded on limited ground enumerated in the judgment dated dated 05.04.2011 in Writ Petition No.2266 of 2002.

Mr. Parsodkar, learned advocate for the petitioner contends that the learned Tribunal has not appreciated the facts of the case and legal provisions in proper perspective. He contends that the impugned judgment is neither sustainable in the facts of the case nor in law. Mr. Parsodkar argues that the inquiry is vitiated on account of several factors to which attention was drawn during the course of hearing of the appeal and yet the learned Tribunal has erroneously dismissed the appeal without properly appreciating the contentions raised.

He contends that, the State Awardee Teacher is not on the panel of the State Awardee Teachers maintained by the Education Officer, the president has acted as a judge in his own cause, Headmaster of the school attended the meeting and acted as second representative of management, the decision to initiate inquiry was not taken by the management since the statement of allegations along with reply issued by the petitioner were not placed before the Management, meetings of inquiry committee were not held in school premises, notices of hearings were not properly given in advance, subsistence allowance was not paid and list of management witnesses was not supplied with the chargesheet, opportunity to cross-examine the management witnesses and to lead evidence was not provided. Mr. Parsodkar also contends that final report inquiry committee is itself vitiated since the petitioner’s representative was won over by the respondent management.

Per contra, Mr. Mohan Sudame, learned Senior Advocate for the respondent/management contends that the petitioner has not participated in the inquiry despite repeated opportunities given to him and therefore he cannot be allowed to raise contention that inquiry conducted is not just, fair and proper. The learned Senior Advocate argues that the petitioner deliberately kept himself away from the inquiry proceeding. As regards the contention that Mr. Shende was not on the panel of State Awardee Teachers maintained by the Education Officer, he argues that Mr. Shende is a State Awardee Teacher and that there is no provision for maintaining a separate panel of State Awardee Teachers. The learned Senior Advocate states that the Headmaster has ceased to attend the inquiry proceedings after objection to his presence was raised. He also contends that all meaningful meetings of inquiry were held in the school at Tedha.

Mr. Sudame sums up his contention by making a submission that a mere breach of the inquiry procedure is not sufficient to set aside the punitive action taken pursuant to a disciplinary inquiry. He contends that unless the employee establishes prejudice, the action taken by the employer cannot be interfered with merely on the ground that the procedure for inquiry was not scrupulously followed.

At the outset, it must be stated that this is a second round of litigation. In the earlier round, the appeal was decided against the petitioner. Termination was held to be valid by the learned Tribunal. However, this Court partly allowed the petition and remanded the appeal to the learned school Tribunal for deciding the same afresh. This Court has passed the order of remand on three grounds namely, (i) Mr. Shende was not eligible for being a member of inquiry committee, (ii) the president could not act as member/convener of inquiry committee since he has lodged report against the employees and (iii) the Headmaster was not competent to participate in the inquiry proceedings.

As regards the contention that the president of the society could not have acted as convener/member since he has lodged report against the petitioner, the record indicates that criminal prosecution against the petitioner was initiated on a complaint made by the Headmaster of the school. There is no material on record that president had lodged police report against the petitioner. The learned Tribunal has rejected the contention with respect to the president being a judge of his own cause on the ground that no material was pointed out to show that the president had initiated criminal prosecution against the petitioner. Judgment in the Criminal Case No.1477of 1994 will indicate that the complaint was lodged by the Headmaster and not the president. The president had merely made an application for grant of police protection, stating that obstruction was created in the school by the petitioner and other employees. The president has not initiated criminal prosecution against the employees. He has merely made an application to the Police Authority seeking police protection for some reasonable period for smooth functioning of the school. The contention that the president has acted as a judge in his own cause cannot therefore be accepted.

The contention that the inquiry committee comprised of four members since the Headmaster also participated in the inquiry on behalf of the management is also liable to be rejected. Although the record indicates that initially the Headmaster attended the inquiry a few dates, on an objection being raised by the petitioner, he had stopped attending the meetings of the inquiry committee. It must be stated that, the petitioner has not pointed out that any meaningful work had transpired during the course of meetings which were attended by the Headmaster or that the Headmaster played any vital role in any of the meetings. Merely stating that some meetings were initially attended by the Headmaster will not be sufficient to dislodge the inquiry.

As regards contention with respect to eligibility of Mr. Shende to act as a State Awardee Teacher, the said contention also liable to be rejected. The petitioner has not disputed that Mr. Shende is a State Awardee Teacher. The contention is that although he is a State Awardee Teacher, his name is not included in the panel maintained by the Education Officer. Legal position in this regards is well settled. A State Awardee Teacher per se is eligible for being appointed on inquiry committee constituted under Rule 36 of the MEPS Rules. The Rules do not contemplate that the Education Officer must maintain a separate panel of State Awardee Teachers to be appointed as members of inquiry committee. It will also be pertinent to state that the learned Tribunal has also referred to a communication issued by the Education Officer granting permission for inclusion name of Mr. Shende as a State Awardee Teacher in another inquiry. The contention that State Awardee Teacher must be from the panel maintained by the Education Officer is rejected by this Court in the case of P.M. Ruikar Trust, Yavatmal ..vs.. Punjaram S/o Dharmaji Wagdarkar and another, reported in 2016 (2) Mh.L.J. 783.

The remand by this Court in the earlier round of litigation was only on these three grounds. However, other grounds were also canvassed by the petitioner during the course of hearing.

The contention that opportunity to lead evidence to cross-examine the management witnesses and to lead evidence was not granted is properly dealt with by the learned Tribunal. The learned Tribunal has recorded a finding that despite the opportunity being granted, the petitioner did not avail of the same. The learned Tribunal has recorded that the record of inquiry proceedings clearly reveals that the inquiry was adjourned from time to time due to non-attendance of the petitioner and his representative on the inquiry committee and that fair and sufficient opportunity was given to him to cross-examine the management witnesses and to lead his evidence in the matter. The learned advocate for the petitioner has not pointed out any material from the record to disturb the said finding. It will be pertinent to mention here that in the earlier round of litigation also the learned Tribunal has dealt with the contention in this regard and has negatived the same by recording cogent reasons. The said findings were not even questioned by the petitioner in the earlier petition filed by him.

As regards the other contentions raised by the petitioner during the course of hearing, it must be stated that the same are not even incorporated as grounds of challenge in the petition. Having regard to the order of remand passed by this Court in earlier petition and also to the grounds of challenge incorporated in the petition, the other contentions cannot be taken into consideration.

Although the other grounds raised in the petition are unsustainable, it must be stated that the inquiry report is prepared only by the management representative and the State Awardee Teacher. The inquiry committee comprises of three members. It is mandate of Rule 37(6) that all the three members of the inquiry committee must apply mind to the evidence on record together and must furnish a joint report. In the event, any member of the inquiry committee does not attend the meeting for finalization of inquiry report or does not sign the inquiry report, in such cases, the inquiry report can be issued under signatures of the remaining two members. Unless such a situation exists, the decision of the inquiry committee must be a decision taken by all the three members.

It is also well settled that the management does not have any authority to take decision with respect to the inquiry. The management is bound by the decision taken by the inquiry committee. The inquiry report is flawed since all the three members of the committee have not apply their mind together. The action taken on the basis of such a report therefore cannot be sustained.

In view of the aforesaid, the order of termination will not be sustainable and will have to be set aside on this ground.

Age of retirement of employee in a private school is 58 years. It appears from the cause title that the petitioner is around 62 years of age. Petitioner has already attained the age of superannuation and as such, relief of reinstatement cannot be granted.

The facts of the present case are peculiar. In the earlier round of litigation, the School Tribunal has recorded a positive finding that the charges are proved and that no case was made out for disturbing the finding recorded by the inquiry committee. The record also indicates that the petitioner stayed away from the inquiry proceedings. He did not cross-examine management witnesses and also did not lead their evidence. It must also be stated the petitioner’s representative was not regular in attending the meetings of the inquiry committee. The order of termination is required to be set aside only on the ground that all three members of the inquiry committee have not signed the inquiry report. There is no positive statement in the appeal that the petitioner was not gainfully employed elsewhere after the termination. Likewise, attention is not drawn to any affidavit filed before the learned school Tribunal in this regard. In the petition also such a statement regarding non-gainful employment is missing. The order of termination is dated 29.04.1995 since then, a period of around 31 years has lapsed. In such a situation, the petitioner will not be entitled to any backwages.

In that view of the matter, instead of relief of reinstatement, the management is directed to pay six months salary including all admissible allowances to the petitioner by way of compensation as provided under Section 11(2)(e) of the MEPS Act. This amount shall be paid in the appropriate pay scale as per the recommendation of pay commission prevailing on the date of superannuation.

In view of the aforesaid, writ petition is allowed in the following term :-