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Judgment
Heard finally with consent of learned advocates for the respective parties.
The present petition is filed in order to challenge judgment and order dated 15.12.2018 passed by the learned Presiding Officer, School Tribunal, Solapur in Appeal No.66 of 2014. By the said judgment and order, the learned Tribunal has quashed and set aside the order of termination dated 19.06.2013 issued by the petitioners, thereby terminating services of respondent No.1 from the post of Assistant Teacher. The learned Tribunal has granted relief of reinstatement in service with continuity and full back wages.
The petitioners will be referred as “the management” and respondent No.1 will be referred as “teacher” hereinafter.
The teacher was appointed in service on 14.06.1993 in a private school run by the management. The service conditions of the teacher are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation, Act (hereinafter referred to as, “the MEPS Act”) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as “the MEPS Rules”) framed thereunder.
The teacher as stated above, was appointed in service on 14.06.1993. While in service, he was also elected as a member of the Gram Panchayat. The teacher was arrested in relation to an offence registered against him on 13.02.2013. He was released on bail vide order dated 26.03.2013. Upon his release on bail, he intended to resume his duties with the management. The management issued a show-cause notice dated 01.04.2013, intimating that an inquiry was proposed to be held against him and that he was suspended from service w.e.f. 13.02.2013. The teacher submitted his reply to the show cause notice on 05.04.2013. The notice dated 01.04.2013 was followed by another notice issued by the management, stating that the teacher had not furnished reply to the earlier show-cause notice dated 01.04.2013. The teacher furnished reply to the notice dated 12.04.2013 on 20.04.2013. He was appraised vide suspension order dated 18.04.2013 that inquiry was initiated against him and the meeting of Inquiry Committee was scheduled to be held on 25.04.2013. The teacher had issued letter dated 29.04.2013 appraising the management that he had appointed one Mr. P. S. Nanvare as his representative on the Inquiry Committee. The inquiry was initially concluded and, thereafter, vide letter dated 07.07.2013, Convener of the Inquiry Committee forwarded proceedings of the Inquiry Committee to the teacher asking him to furnish his reply. The teacher furnished his reply on 14.07.2013. The management thereafter terminated services of the teacher vide termination order dated 19.06.2013.
The order of termination was challenged by the teacher by filing appeal under Section 9 of the MEPS Act. The said appeal, registered as Appeal No.66 of 2014 was allowed vide judgment and order dated 27.11.2015. Being aggrieved by the said judgment and order, the management preferred Writ Petition No.4394 of 2016 before this Court. The said petition was allowed and the matter was remitted to the learned School Tribunal for deciding the appeal afresh. The management was granted permission to file its written statement in the appeal. The management accordingly filed its written statement after the appeal was remanded by this Court.
The appeal was again allowed by the learned Tribunal after it was remitted back for fresh decision. The learned Tribunal has held that the management has not served statement of allegations and charge-sheet on the employee. It is also held that the opportunity to appoint representative on the Inquiry Committee was not provided to the employee and when the employee himself appointed his representative on the Inquriy Committee, the said representative was not allowed to participate in the proceedings of the Inquiry Committee. Lastly, the learned Tribunal has held that the inquiry report, on the basis of which punitive action is taken against the employee, was also not a joint inquiry report as contemplated under Rule 37(6) of the MEPS Rules. In view of such findings, the inquiry is held to be completely vitiated and the order of termination is set aside. The learned Tribunal has also awarded full back wages in favour of the employee.
Mr. V. D. Salunke, learned Advocate for the Management, criticizes the findings recorded by the learned Tribunal. He contends that the fact that the teacher has filed reply will indicate that statement of allegations and charge-sheet were, in fact, served. The learned advocate also contends that from very fact that the teacher has nominated his representative on the Inquiry Committee will be sufficient to infer that opportunity to nominate his representative on the Inquiry Committee was extended to him. The learned advocate, therefore, contends that the findings recorded by the learned Tribunal are contrary to the record and perverse. It is contended that admittedly the teacher was involved in a criminal case involving moral turpitude and was also in jail for a considerable period. It is argued that such a teacher cannot be allowed to continue in service. The learned Advocate argues that the order of termination is set aside merely on technical grounds.
Apart from this, a contention is raised that the teacher had failed to discharge the initial burden of not being gainfully employed elsewhere after termination of his services till the date of reinstatement. The learned advocate argues that perusal of findings by the learned Tribunal will demonstrate that no reasons are recorded for granting 100% back wages to the teacher. It is argued that the impugned order must, therefore, be set aside at least to the extent of award of back wages.
Per Contra, Mr. Jadhavar, learned Advocate for the teacher, justifies the findings and the order passed by the learned Tribunal. It is contended that the statement of allegations and charge-sheet were not served and likewise intimation for appointment of teacher's representative were also not issued. He contends that the notice issued by the management was for appearance before the Inquiry Committee constituted by the management comprising of management's representative and State Awardee teacher. He states that the teacher had, on his own, nominated his representative to the Inquiry Committee, who was also not allowed to participate in the inquiry proceedings. With respect to the contention that filing of reply will demonstrate that statement of allegations and charge sheet were served, the learned Advocate states that the notice was for appearance before Inquiry Committee and not for furnishing explanation to any statement of allegations. He further points out that the charge sheet was also not served and that findings recorded in this regard are just and proper.
As regards back wages, the contention is that since the order of termination is set aside, relief of back wages must necessarily follow in the facts of the present case, where the order is completely in disregard to the principles of natural justice and the procedure prescribed under the statute. Mr. Jadhawar argues that, as on the date of termination, the age of the teacher was 44 years and, as such, possibility of securing alternate employment is completely ruled out.
I have heard rival submissions as aforesaid.
The services of the teacher have been terminated after conducting disciplinary inquiry against him. The procedure for initiating inquiry against an employee of a private school is governed by Rules 36 and 37 of the MEPS Rules. Rule 36(1) provides that in cases where the management decides to hold inquiry against an employee, it shall do so by a properly constituted inquiry committee. Rule 36(1) further provides that the Chief Executive Officer of the management should communicate to the employee concerned the allegations against him by Registered Post Acknowledgment Due (RPAD) calling for a written explanation on the allegations within a period of 7 days. Rule 36(2) provides that the reply, if submitted by the employee, should be considered by the Chief-Executive Officer and if he finds the same to be unsatisfactory, the statement of allegations and the explanation should be placed before the management for consideration. The decision to hold the inquiry is required to be taken by the management after taking into consideration the statement of allegations and reply submitted by the delinquent. Rule 36(2) further provides that in case the management takes a decision to hold an inquiry, the same shall be conducted by a three member committee comprising of one member nominated by the management from the members of the management, whose name shall be communicated to the Chief Executive Officer (CEO) within a period of fifteen days from the date of appointment, one member to be nominated by employee from amongst the employees of any private school and one member chosen by CEO from panel of teachers on whom State or National Award is conferred. Rule 36(3) provides that the CEO has to communicate the names of the members nominated under Rule 36(2) to the employee by registered post, with directions to him to nominate a person on his behalf on the Inquiry Committee within a period of fifteen days from the date of receipt of communication.
Thus, the scheme of Rule 36 is that before a decision is taken for initiating disciplinary inquiry against an employee, a statement of allegations must be served upon him. The employee has a right to offer his explanation to the statement of allegations. If the explanation offered is accepted by the CEO, then there is no need for him to place the same before the management. The question of holding enquiry does not arise if the CEO finds the explanation to be satisfactory and does not deem it necessary to place the statement of allegations and the explanation before the management. It is only when the CEO does not find the statement to be satisfactory, he has to placed it before the management. The issue is put to there and then. The management is required to take a decision on initiation of departmental inquiry considering the statement of allegations and the explanation offered.
Rule 36(1) and (2) thus provide a statutory safeguard to the employee to be observed by the management before taking a decision to initiate disciplinary inquiry for imposition of major penalty. In the case at hand, the learned Tribunal has recorded a categorical finding that statement of allegations was never served upon the teacher.
The legal position with respect to the step-by-step procedure contemplated under Rules 36(1), 36(2) and 37(1) of the MEPS Rules and consequences of failure to follow the said procedure is succinctly explained by this Court in the case of Punjaram Dharmaji Wagdarkar Vs. Presiding Officer, School Tribunal, Amravati and anr1. (paragraphs 8 to 10).
It must be stated that the management had produced on record statement of allegations dated 08.04.2013 and charge-sheet dated 15.04.2013 in order to show compliance with Rule 36 of the MEPS Rules. However, the said documents are disbelieved by the learned Tribunal, observing that there is no evidence to suggest service of the said documents on the teacher and further that the said documents do not find reference in the final report submitted by the Inquiry Committee.
It will be appropriate to first deal with the contention of Mr. Salunke that statement of allegations and charge sheet were served upon the teacher.
The statement of allegations and charge-sheet are not even referred in the final report. This, by itself, is sufficient to create a doubt as regards the said documents. Apart from this, there is no evidence on record to suggest that the same were, infact, served on the teacher. It must be stated that issuance of statement of allegations is the first step towards holding disciplinary inquiry against the teacher. The statement of allegations is required to be issued by a duly authorized CEO. The teacher is required to be given seven days period for furnishing reply. If the CEO finds the reply to be satisfactory, he is not required to place it before the management for consideration as to whether inquiry should be held or not. If the reply is found to be unsatisfactory or if no reply is filed, the CEO has to place the statement of allegations and reply or if no reply is filed merely statement of allegations, before the management. The management then decides whether or not to hold inquiry. When the management decides to hold inquiry, it is required to frame a charge-sheet. For holding inquiry, the management has to nominate its member on the three member Inquiry Committee. However, in the case at hand, vide notice dated 01.04.2013, the teacher was asked to appear before the Inquiry Committee, which implies that decision to hold inquiry was already taken and the Inquiry Committee was also constituted before 01.04.2013.
The fact that statement of allegations dated 08.04.2013 and charge-sheet dated 15.04.2013 do not find reference in the final report and also having regard to the fact that vide notice dated 01.04.2013, the teacher was asked to appear before the Inquiry Committee, the documents purported to be statement of allegations dated 08.04.2013 and charge-sheet dated 15.04.2013 are rightly discarded by the learned Tribunal. The documents do not inspire confidence and appear to be created subsequently.
Assuming the documents to be genuine, it is obvious that 7 days period for filing reply to the statement of allegations is not given to the teacher and the decision to hold enquiry by constituting an Inquiry Committee was already taken before issuance of statement of allegations. Thus, initial step for taking decision to initiate inquiry is not taken in accordance with the statutory Rules, thereby depriving the teacher of statutory safeguard provided under Rule 36(1) and (2) of the MEPS Rules. The enquriy and termination must be held to be invalid in view of Rule 36 and 37 of the MEPS Rules, in the light of interpretation of the same Punjaram Dharmaji Wagdarkar (supra).
Apart from this, the findings recorded by the learned Tribunal clearly indicate that opportunity to nominate his representative on the Inquiry Committee was also not provided to the teacher by the management. The management has not produced any material on record to arrive at a conclusion that intimation for nomination of his representative was issued to the teacher. The teacher, on his own nominated his representative upon receiving notice for appearance before the Inquiry Committee.
Apart from this, the learned Tribunal has also recorded a finding that the teacher's representative was not allowed to participate in the inquiry proceedings. The Learned Tribunal has made reference to the letter dated 29.04.2013 issued by Secretary of the management, informing that the teacher alone will be allowed to participate in the inquiry in order to present his defence. Based on this finding, the learned Tribunal has recorded that the inquiry was also not conducted in accordance with principles of natural justice.
It must be stated that the Rules provide for constitution of three-member committee. All the three members together constitute one committee. The members committee have to function together. However, the teacher was deprived of statutory right to have participation of his representative in the meetings of the Inquiry Committee.
It must also be stated that final decision with respect to proof of charges or otherwise is required to be taken by the Inquiry Committee. The Inquiry Committee is also required to recommend the punishment to be imposed upon the delinquent teacher. The management is only supposed to implement the decision taken by the Inquiry Committee. Rule 37(6) clearly provides for the same. The said provision is held to be mandatory. Refusal to allow the teacher's representative to participate in the inquiry is thus in disregard to the mandate of Rule 36(2) and 37 of the MEPS Rules. Legal position in this regard is settled by the Hon’ble Supreme Court in the case of Vidya Vikas Mandal and Another v. Education Officer and Another2, wherein it is held as under:-
“In our opinion, the report submitted by individual members is also not in accordance with the rules. When the Committee of three members is appointed to inquire into a particular matter, all the three members should submit their combine report whether consenting or otherwise. Since the report is not in accordance with the mandatory provisions, the Tribunal and the learned Single Judge and also the Division Bench of the High Court had committed a serious error in accepting the said report and acting on it and thereby ordering reinstatement with back wages”
It must also be stated that the inquiry committee report, which is submitted by two members only cannot be considered to be report of the Inquiry Committee in law, since the third member/teacher's representative was not allowed participation and was not involved while preparing the report. It is only where the teacher's representative does not cooperate or does not concur with the views of the other two members, or the teacher does not appoint his representative at all, that the other two members of the committee can furnish report for taking appropriate action against the teacher. In the present case, the teacher's representative was denied opportunity of participation and was also not involved while the final report was furnished. The management, therefore, could not have taken any action against the teacher pursuant to the said final report. For the reasons recorded above, order passed by the learned Tribunal to the extent of quashing and setting aside the order of termination, does not warrant any interference. The order to that extent is perfectly just, proper and legal.
As regards the back-wages, perusal of the Memorandum of Appeal will demonstrate that the teacher has not made any statement with respect to non-gainful employment from the date of termination of his services. Likewise, perusal of the judgment by the learned Tribunal will also indicate that a specific statement about non-gainful employment was also not made by the learned Tribunal during the course of hearing of the appeal. Moreover, perusal of the judgment passed by the learned Tribunal will indicate that it has not recorded any reason for granting 100% back wages to the teacher. Directions for payment of 100% back wages are not backed by reasons.
The settled legal position with respect to grant of back wages is that, normally, upon order of termination being set aside, relief of back wages must follow, except to the extent of amount that the employee may have earned from employment elsewhere after his termination. As has been held in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others,3 the initial burden of not being gainfully employed elsewhere lies on the employee and once the said burden is discharged, the employer has to prove by proper evidence that the employee was gainfully employed elsewhere during the relevant period. The burden of proof on the employer can be discharged by making a statement regarding non-gainful employment, since it is difficult to prove the negative fact of not being gainfully employed elsewhere. The employer has to lead positive evidence once the employee makes a statement regarding not being gainfully employed elsewhere. In the case at hand, the employee has not made such a statement before the learned Tribunal. The present petition is filed in the year 2019. The teacher has not filed any affidavit in the present petition as well to the effect that he was not gainfully employed elsewhere after termination of his services. The order to that extent is clearly unsustainable and warrants interference.
Since the learned Tribunal has passed an order awarding full back wages without recording any reasons, normally, this Court would have remitted the matter back to the learned Tribunal for deciding the issue of back wages. However, the services of the employee were terminated on 19.06.2013, and he is out of employment since then. A period of more than 13 years has passed. After the employee had succeeded in the first round of litigation, this Court had remitted the matter back to the learned Tribunal by setting aside the order passed in favour of the employee, allowing his appeal. Again, after the appeal was remanded for fresh adjudication, it is decided in favour of the employee. It would be unjust and unfair to remand the matter again for the purpose of deciding the issue of back wages. This Court has, therefore, taken up the issue of adjudication of back wages by itself.
As recorded above, the appeal preferred by the teacher was initially allowed by the learned School Tribunal vide order dated 27.11.2015. The management challenged the said order before this Court vide Writ Petition No.4394 of 2016. The said petition was allowed and the appeal was remitted to the learned Tribunal to decide the same afresh after granting opportunity of filing written statement to the management. The learned Tribunal has again allowed the appeal vide judgment dated 15.12.2018.
It must also be stated that after the appeal came to be allowed on 15.12.2018, the present petition came to be filed on 18.02.2019. It was listed for the first time on 02.04.2019. This Court has not granted stay to the order passed by the learned School Tribunal. Vide order dated 09.10.2020, the understanding between the parties was recorded that the petition shall be heard finally at the stage of admission. The teacher had filed petition for execution with respect to the order granting back wages. Vide order dated 27.10.2021, this Court has granted stay to the execution proceedings since warrant was issued in the execution proceedings for recovery of amount. There is no justification for not reinstating the teacher in service in compliance of order passed by the learned School Tribunal.
The Hon’ble Supreme Court in the case of Allahabad Bank and Others v. Avatar Bhushan Bharatiya4, has reiterated the settled legal principles relating to award of back wages. It has referred to several earlier decisions on the point including the case of Deepali Gundu Surwase (supra). In the case before the Hon’ble Supreme Court, there was no statement about non-gainful employment of the employee. Even after amendment of the pleadings, the employee did not incorporate such a statement. The Hon’ble Supreme Court reiterated the principle that it is necessary for the employee to first plead that he was not gainfully employed elsewhere, and it is only then that the burden to prove the contrary shifts upon the employer. In the case before the Hon’ble Supreme Court, the employee had rendered more than 15 years of service. He had 24 years service left at the time of termination of his services. The employee superannuated while the litigation was pending. The High Court had awarded 50% back wages. The Hon’ble Supreme Court deemed it fit to maintain the order awarding 50% back wages passed by the High Court. It is observed that in the prevailing fact situation, the High Court had done the right thing by striking a balance.
In the present case also, services of the employee were terminated on 19.06.2013. He is out of employment for a period over 13 years. He has succeeded in two rounds of litigation. The impugned order of reinstatement passed in favour of the employee is dated 15.12.2018. A period of around 7 years and 10 months has passed since then, yet he is not reinstated in service. The employee was around 45 years old at the time of termination of his services and the age of superannuation is 58 years. He has hardly a year or so of service left. As recorded above, there is no justification for not granting reinstatement him in service after the appeal came to be allowed by the learned School Tribunal. Although statement of non-gainful employment is not made, it must be recorded that the employee has worked as a teacher for a period of around 20 years prior to his termination. Having regard to all these circumstances, in the considered opinion of this Court, ends of justice will be subserved by directing the management to pay 50% salary to the respondent-employee from 16.12.2018 i.e. the date following the date on which appeal was allowed by the learned School Tribunal and onwards till the date of his reinstatement.
For the reasons recorded above, writ petition is partly allowed in the following terms :-
I. Order dated 15.12.2018, passed by the learned Presiding Officer, School Tribunal, Solapur in Appeal No.66 of 2014, is maintained to the extent of quashment of Order of Termination dated 19.06.2013 and directing reinstatement of the teacher with benefit of continuity and other consequential benefits.
II. The petitioner – Navin Osmanabad Zilla Balvikas Samiti is directed to pay 50% amount of salary to respondent–Pramod Trimbakrao Pawar from 16.12.2018 onwards.
WRIT PETITION NO.12027 OF 2021
The Present petition is filed in order to challenge order dated 17.09.2021 passed by the learned Presiding Officer, School Tribunal, Solapur, directing issuance of recovery warrant against the petitioners for recovery of amount of Rs.45,00,000/- as per Order XXI Rule 43 of CPC and forwarding the recovery warrant for execution to the Court of learned Civil Judge, Senior Division, Osmanabad. The said order is passed in view of judgment and order dated 15.12.2018 passed by the learned Presiding Officer, School Tribunal, Solapur in Appeal No.66 of 2014. The order passed by the learned School Tribunal awarding 100% back wages is modified by this Court as above.
In view of the above, order dated 17.09.2021 passed by the learned presiding Officer, School Tribunal, Solapur on application at Exhibit 14 in Misc. Application No.05 of 2020 is quashed and the learned School Tribunal is directed to consider the said application afresh in the light of order passed by this Court.
It is, however, directed that if any property(ies) of the petitioners is/are attached by the learned Civil Court, the said order of attachment shall remain in force till afresh adjudication of the application by the learned School Tribunal.
Likewise, if any, amount is secured or deposited by the petitioners before the learned Civil Court or School Tribunal, the same shall be adjudicated against back wages as awarded by this Court in Writ Petition No.4231 of 2019.
The parties are directed to appear before the learned School Tribunal in Misc. Application No.5 of 2020 on 30.10.2026.
Parties to note that separate notice for appearance will not be issued.
The learned School Tribunal is requested to decide the said application, as early as possible, and preferably, before 30.11.2026.