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Judgment
V.A. Naik, J—RULE. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
By this petition, the petitioner has challenged the communication issued by the respondent No. 2-Convenor of the Enquiry Committee constituted under the provisions of Rule 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, dated 11.07.2014, asking the petitioner to nominate another employee from amongst the employees of any private school as his representative, as the representative nominated by the petitioner had retired from the private school, in which he was working, on attaining the age of superannuation.
The petitioner was appointed as an Assistant Teacher by the respondent No. 1-Management on 15.07.2005. The respondent No. 1-Management had terminated the services of the petitioner and an appeal filed by the petitioner against the termination order was allowed by the School Tribunal by an order dated 16.02.2008. In the year 2011, in terms of an order passed in the contempt petition, the respondent No. 1-Management permitted the petitioner to join his duties. An enquiry was initiated against the petitioner by the respondent No. 1-Management on 06.03.2014. The petitioner was asked by the respondent No. 1-Management, by the communication dated 02.04.2014 to nominate an employee from amongst the employees of any private school as his representative, on the enquiry committee. On 16.04.2014, the petitioner nominated Shri Avinash Mudholkar as his representative on the enquiry committee. The nomination was acceptable to the respondent No. 1-Management and the petitioner was permitted to participate in the proceedings, through Shri Avinash Mudholkar. During the pendency of the enquiry proceedings on 30.06.2014, the petitioner''s representative attained the age of superannuation and retired from service. By the impugned communication, the respondent No. 1-Management directed the petitioner to nominate another employee from amongst the employees of any private school as his representative. The petitioner has challenged the said action of the respondent No. 1-Management, by the instant writ petition.
Shri Patil, the learned counsel for the petitioner, submitted that when the petitioner was asked to nominate an employee from amongst the employees of any private school as his representative on 02.04.2014 and when the petitioner nominated the employee of a private school, viz. Shri Avinash Mudholkar, as his representative on 16.04.2014, the representative was admittedly working in a private school. It is submitted that in view of the provisions of Rule 37(2)(f) of the Rules of 1981, an enquiry is required to be completed within a period of 120 days and the petitioner believed that the enquiry would be completed before the petitioner''s representative attains the age of superannuation. According to the petitioner, Rule 36(2)(a)(ii) of the Rules of 1981, enables an employee to nominate an employee from amongst the employees of any private school. At the relevant time on 16.04.2014, according to the petitioner, his representative was the employee of a private school. It is submitted that merely because the petitioner''s representative has attained the age of superannuation in the midst of the enquiry, the respondent No. 1-Management cannot direct the petitioner to nominate another employee from any private school as his representative. It is submitted that the representative nominated by the petitioner is fully aware of the charges levelled against the petitioner and also his defence and, hence, it would not be in the interest of justice to ask the petitioner to nominate another employee as his representative. The learned counsel relied on the judgment of the Division Bench of this Court, reported in Sudha Vs. Yashodabai Shikshan Sanstha and Others, (2004) 101 FLR 106 : (2003) 4 MhLj 659 to substantiate his submission. The learned counsel relied on paragraph 7 of the said judgment to state that a physically and mentally fit awardee teacher above the age of 65 years could not have been disqualified from being a member on the enquiry committee.
Shri Deshpande, the learned counsel for the respondents, supported the action of the respondent No. 1-Management and submitted that the term "Employee" is defined in Section 2(7) of the Act of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. It is submitted that an employee means any member of the teaching or non-teaching staff of a recognized school. It is submitted that a representative nominated by the petitioner should be an employee of a private school. It is stated that on the date of nomination of the representative of the petitioner, the representative was an employee of a private school but, he ceased to be an employee of the private school on 30.06.2014 and, hence, is not entitled to continue as a representative of the petitioner, on the enquiry committee. It is submitted that the judgment reported in Sudha Vs. Yashodabai Shikshan Sanstha and Others, (2004) 101 FLR 106 : (2003) 4 MhLj 659 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case as in the said case, the Court was considering the provisions of Rule 36(2)(a)(iii) and not Rule 36(2)(a)(ii) of the Rules of 1981 as are involved in this case. The learned counsel sought for the dismissal of the writ petition.
On hearing the learned counsel for the parties and on a perusal of the provisions of Rule 36 and the other provisions of the Act of 1977 and the Rules of 1981, it appears that the respondent No. 1-Management was not justified in directing the petitioner to nominate another employee from amongst the employees of any private school as his representative on the enquiry committee. Rule 36(2)(a)(i), (ii) and (iii) of the Rules of 1981 reads as under:
"36. Inquiry Committee
(1) ..............................
(2) If the Chief Executive officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in sub-rule (1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The Management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say --
(a) in the case of an employee --
(i) one member from amongst the members of the Management to be nominated by the Management, or by the President of the Management if so authorised by the Management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of the decision of the Management;
(ii) one member to be nominated by the employee from amongst the employees of any private school;
(iii) one member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been confirmed."
In this case, we are concerned with the nomination of a member by the employee from amongst the employees of any private school, as required by the provisions of rule 36(2)(a)(ii) of the Rules of 1981. On a reading of Rule 36(2) it is clear that Rule 36 speaks of the constitution of the enquiry committee. We are, therefore, concerned with the constitution of the enquiry committee as on the date, on which it was constituted. On the date of the constitution of the enquiry committee, the employee nominated by the petitioner as his representative, was admittedly serving as an employee in a private school. The respondent No. 1-Management did not have any grievance about the nomination of Shri Avinash Mudholkar as the representative of the petitioner. Merely because the representative nominated by the petitioner attained the age of superannuation during the pendency of the enquiry, the respondent No. 1-Management could not have prevented Shri Avinash Mudholkar from acting as a representative of the petitioner and could not have asked the petitioner to nominate another employee from amongst the employees of any private school on the ground that Shri Avinash Mudholkar had attained the age of superannuation during the pendency of the enquiry. There is nothing in Rule 36 of the Rules of 1981 which provides for the discontinuation of a representative on the ground that the representative ceases to be an employee of the private school during the pendency of the enquiry. Moreover, the representative is not removed for misconduct and has retired on attaining the age of superannuation. This Court has observed in the judgment reported in Sudha Vs. Yashodabai Shikshan Sanstha and Others, (2004) 101 FLR 106 : (2003) 4 MhLj 659 that the Court was at a loss to understand as to why an Awardee teacher aged 65, if otherwise physically and mentally fit to be a member of the enquiry committee could be disqualified for being a member thereof. Though the ratio laid down in the judgment reported in Sudha Vs. Yashodabai Shikshan Sanstha and Others, (2004) 101 FLR 106 : (2003) 4 MhLj 659 would not strictly apply to the case in hand, it is clear from a reading of Rule 36 and the other provisions of the Act of 1977 and the Rules of 1981 that the enquiry committee was properly constituted as per Rule 36 of the Rules of 1981 with the nomination of Shri Avinash Mudholkar as a representative of the petitioner and the representative of the petitioner could not have been prevented from acting as a representative only because he had attained the age of superannuation during the pendency of the enquiry. Moreover, it is clear from a reading of the provisions of Rule 37(2)(f) of the Rules of 1981 that an enquiry is required to be completed as far as possible within a period of 120 days. The object of the Rules would be frustrated if enquiries are permitted to continue for years together as in such cases it is most likely that a representative nominated by an employee, against whom the enquiry is pending, would retire during the pendency of the proceedings. The object of the Rule 37(2)(f) would be frustrated if the Management is permitted to ask its employee to change the representative on the enquiry committee after he attains the age of superannuation.
Hence, for the reasons aforesaid, the writ petition is allowed. The impugned communication is quashed and set aside. It is hereby held that Shri Avinash Mudholkar would be entitled to continue as a representative of the petitioner till the culmination of the enquiry proceedings.
Rule is made absolute in the aforesaid terms with no order as to costs.