AI Structured Summary
Not yet generated for this judgment
Judgment
The present petition is filed in order to challenge the judgment and order dated 18.02.2016 passed by the learned Presiding Officer, School Tribunal, Aurangabad Region, Aurangabad dismissing Appeal No. 11/2009 filed by the present petitioner, thereby refusing to quash and set aside the order of termination dated 02.03.2009 issued by respondent no. 1 – management.
The respondent no. 1 - management runs a private school named Jagadamba Pratisthan Shikshan Sanstha, Aurangabad Sanchalit Primary School, Garkheda. The petitioner was appointed to the post of Assistant Teacher in the said school on 24.06.1996. The appointment of the petitioner was duly approved by the Education Officer. After completion of probation, the petitioner assumed the status of a permanent Assistant Teacher. The petitioner will hereinafter be referred to as 'the teacher', respondent no. 1 as 'the management' and Respondent No. 2 as 'the school'.
It is the case of the teacher that certain irregularities were detected by the Education Department with respect to the working of the erstwhile Headmaster of the school, as a consequence of which, the charge of Head of the school was entrusted to her on 21.09.2006 by an order passed by the Education Officer. It is her case that since then, disputes arose between herself and the management. The management initially suspended the services of the petitioner and decided to initiate disciplinary inquiry against her for imposing a major penalty. After holding the inquiry, the management terminated the services of the teacher vide order dated 02.03.2009. This order of termination was assailed by the teacher by filing Appeal No. 11/2009 before the learned School Tribunal.
Vide judgment and order dated 26.06.2012, the learned School Tribunal quashed and set aside the order of termination dated 02.03.2009 and issued directions to the management to afford an opportunity of furnishing further explanation to the teacher as contemplated under Rule 37(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, 'MEPS Rules'). It was further directed that the appellant shall be deemed to be under suspension from 27.02.2009. The said judgment and order dated 26.06.2012 passed by the learned School Tribunal was challenged by both the teacher and the management before this Court vide Writ Petition Nos. 8419 of 2012 and 6045 of 2012. The management challenged the finding recorded by the learned Tribunal as regards the alleged breach of Rule 37(5) of the MEPS Rules. As against this, the teacher challenged the order to the extent to which permission to conduct the inquiry afresh from the stage of Rule 37(5) was granted to the management, contending that order of termination was liable to be quashed in its entirety.
Both these writ petitions came to be decided vide a common judgment dated 21.09.2015. This Court found favour with the contention of the management that an opportunity to file reply as per Rule 37(5) was granted to the teacher. It is recorded that the teacher had offered her explanation as per the said provision and in addition, had tendered an additional reply/ explanation. However, this Court found that the learned Tribunal had not recorded any finding as to whether the inquiry report was furnished in accordance with Rule 37(6) of the MEPS Rules or not. It was found that no findings were recorded by the learned Tribunal on this aspect. This Court, therefore, remanded the appeal back to the learned School Tribunal to decide the question as to whether the inquiry report was in accordance with Rule 37(6) of the MEPS Rules.
After remand of the appeal, the learned School Tribunal decided the same afresh vide judgment and order dated 18.02.2016. The learned Tribunal recorded that the inquiry report was furnished in accordance with Rule 37(6) and has accordingly upheld the order of termination of services of the teacher. This judgment and order dated 18.02.2016 dismissing the appeal is the subject matter of challenge in the present petition.
Mr. Barlinge, learned advocate appearing for the teacher, vehemently argues that although Rule 36(2) of the MEPS Rules contemplates a three-member committee for holding an inquiry against an employee of a private school, all three members constitute a single committee and must function as such. His contention is that the members of the Inquiry Committee must jointly deal with the material on record as well as the explanation offered by the teacher and furnish a common report. A separate report can be furnished by members of the committee only when they do not concur with the findings or one of the members is unwilling to sign the inquiry report with the other members. Learned counsel points out that in the meeting scheduled for finalizing the inquiry report, the teacher’s representative had pointed out that it was necessary for all three members to prepare a common report. However, the management's representative and the State Awardee Teacher recorded separate findings in two separate reports and called upon the teacher's representative to furnish his separate report. Learned Counsel further argues that it is in these circumstances that the teacher's representative has forwarded a separate report. He contends that three separate inquiry reports by three individual members are not contemplated under Rule 37(6). Placing reliance on the judgment of the Hon’ble Supreme Court in the case of Vidya Vikas Mandal and another v. Education Officer and another [(2007) 11 SCC 352 / 2007 (3) Bom.C.R. 857], the learned Advocate argues that the inquiry must be held to be vitiated in view of non-compliance with Rule 37(6). He contends that despite specific directions by this Court to decide the validity of the inquiry report in the light of Vidya Vikas Mandal (supra), the learned Tribunal erred in holding that the inquiry report was in accordance with Rule 37(6).
Per contra, Mr. Sapkal, learned Senior Advocate appearing for the management, contends that the inquiry report is indeed a unified common report. His argument is that the members of the Inquiry Committee have different views and have given their separate findings. The contention is that the findings recorded by all the three members constitute one common report which is forwarded to the management by the Inquiry Committee. He submits that the learned Tribunal has properly dealt with the issue in accordance with Rule 37(6) and the law laid down by the Hon’ble Supreme Court in Vidya Vikas Mandal (supra).
Relevant portion of Rule 37(6) of the MEPS Rules, 1981 is reproduced below for ready reference:-
“37(6). On receipt of such further explanation or if no explanation is offered within the aforesaid time the Inquiry Committee shall complete the inquiry and communicate its findings on the charges against the employee and its decision on the basis of these findings to the Management for specific action to be taken against the employee or the Head, as the case may be, within ten days after the date fixed for receipt of further explanation.…"
A perusal of the aforesaid provision indicates that upon receipt of the explanation offered by the employee, the Inquiry Committee has to complete the inquiry and communicate its findings on the charges against the employee and its decision on the basis of such findings to the management for specific action to be taken against the employee.
Perusal of the provision demonstrates that the word ‘its’ has been used under the provisions for the findings to be recorded and action to be taken specified. Thus, a plain reading of the provision will demonstrate that all three members of the Inquiry Committee are supposed to record a common finding and make a common recommendation regarding the action to be taken against the employee. It will also be appropriate to extract the relevant observations of the Hon’ble Supreme Court in the case of Vidya Vikas Mandal (supra), while interpreting the said provision:-
“8.…..In our opinion, the report submitted by individual members is also not in accordance with the Rules. When the Committee of three members are appointed to inquire into a particular matter, all the three should submit their combined 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 have committed a serious error in accepting the said report and acted on it and thereby ordering the reinstatement with back wages. Since the reinstatement and back wages now ordered are quite contrary to the mandatory provisions of Rule 37 (6), we have no hesitation in setting aside the order passed by the Tribunal, and learned Single Judge and also of the Division Bench of the High Court. In addition, we also set aside the order passed by the Management based on the report submitted by the single member of the Committee, which is also quite contrary to the Rules.”
The judgment in the case of Vidya Vikas Mandal was considered by this Court in the case of Krishna Hasha Mokal v. Secretary / President, People's Education Society and others 2025 SCC OnLine Bom 589. In the said decision, this Court observed that representatives of teachers in the three-members Inquiry Committee often deliberately misuse the law laid down by the Hon’ble Supreme Court in Vidya Vikas Mandal (supra) in order to dent the inquiry procedure. It is held that, at times, the employee's representative deliberately refrains from participating in the final meeting for discussions and deliberations or submits a separate report so as to extend the benefit of the ratio in Vidya Vikas Mandal (supra) to the employee, enabling them to have the termination order set aside. This Court held that in cases where the nominee of the employee deliberately stays away from the final meeting of the Inquiry Committee scheduled for discussions, deliberations and preparation of the final report, the inquiry cannot be said to be vitiated merely because the employee's representative does not sign the same. In the said case, the last meeting of the Inquiry Committee for finalizing the inquiry report was scheduled for 11/08/2000. The employee's representative did not attend the said meeting, nor did he make any request for adjournment of the meeting. In view of such conduct, the remaining two members submitted a report on the basis of which action was taken by the respondent no. 1 - management. It was in this backdrop of facts that this Court has held that the ratio of Vidya Vikas Mandal (supra) must be understood and applied in the context of the specific facts in which those observations were made. Relevant observations in paragraphs 25, 26 and 27 in the case of Krishna Asha Mokal (supra) are reproduced herein below for ready reference:
“25.However, in case before the Apex Court in Vidya Vikas Mandal, only one member out of three members of the Inquiry Committee nominated by the management had submitted his inquiry report within the stipulated time and the other two members had not submitted the report. The main flaw noticed by the Apex Court was that the report of the two members was submitted after the time limit prescribed by the Rule 37(6) of the MEPS Rules. It is in the light of this factual position where the three committee members wrote individual reports on different dates that the Apex Court has held that all the three members ought to have submitted their combined report, whether consenting or otherwise.
26.In the present case, it appears that at the end of the inquiry, the summary was jointly prepared by all the three members of the Inquiry Committee. The seventh meeting of the Inquiry Committee was conducted on 11 August 2000, when the Committee was to meet for preparing inquiry report. It appears that despite being invited to attend the seventh meeting on 11 August 2000, Petitioner’s nominee Mr. Jangle refused to acknowledge the notice of inquiry on 11 August 2000 and refused to attend the same. Mr. Jangle did not make any request for adjournment of the meeting nor showed any interest in participating in the process of deliberations and discussions for preparation of inquiry report. It appears that Mr. Jangle simply refused to sit with other two members for preparation of the report. In such circumstances, question arises as to whether the report of the other two committee members would get automatically vitiated if the third member deliberately refuses to prepare a joint report. The findings rendered by the Apex Court in Vidya Vikas Mandal must be understood in the context in which they are made. As observed above, observations of the Apex Court are made in the context of three members of the Committee submitting individual reports on three different dates.
27.The judgment of the Apex Court in Vidya Vikas Mandal is rendered in the peculiar facts where three Inquiry Committee members had written three distinct reports at different times and there was no deliberation amongst them. In the present case, the nominee of the Petitioner was invited for deliberations, but he refused to participate in such deliberations. Therefore, the deliberations took place between the remaining two members of the Inquiry Committee. The nominee of the Petitioner, who was expected to write a joint report, deliberately submitted his individual report on 29 August 2000 after the report of the two committee members was prepared on 25 August 2000.”
A perusal of the aforesaid observations will indicate that what is contemplated under Rule 37(6) of the MEPS Rules is a joint discussion and deliberation for arriving at common findings and a common proposal.
In the facts of the present case, after the explanation of the employee was received, a meeting of the Inquiry Committee was fixed for 25/02/2009 for joint discussions and deliberations. The teacher's representative made a request for adjourning the meeting by a day. On the next day, i.e. on 26/02/2009, the teacher filed her additional explanation. The representative of the respondent no. 1 - management and the State Awardee Teacher placed on record their individual reports on 26/02/2009. The teacher's representative sought an extension of one day for furnishing report and to submit the same on 27/02/2009. All three individual reports were forwarded to the respondent no. 1 management along with a common covering letter dated 27/02/2009, titled as "The Report of the Inquiry Committee consisting of three members". A perusal of the minutes of the meeting dated 26/02/2009 will demonstrate that the teacher's representative insisted that the committee’s report should be a common report prepared by all three members together. He insisted that the procedure of three members furnishing three separate findings is not contemplated under Rule 37(6) of the MEPS Rules. However, the other two members did not agree with the view expressed by the teacher’s representative, and in such a situation, three separate findings with three separate recommendations were forwarded to the management, although all three reports were forwarded under a common covering letter. The record of the present case will indicate that all three members did not hold common deliberations nor did they arrive at a common finding.
In view of the above, it must be held that the action taken by the respondent no. 1 - management is based on an inquiry report which is not in accordance with Rule 37(6) of the MEPS Rules. The management does not have any authority to take an independent decision in the matter of inquiry. It merely implements the decision/recommendation arrived at by the Inquiry Committee. In the present case, the decision of the Inquiry Committee itself is not in accordance with the mandate of Rule 37(6). The consequent action of termination must, therefore, fall. The order of termination will, therefore, be required to be quashed and set aside and the appeal deserves to be allowed to this extent.
It will now be appropriate to refer to the issue of back wages. A perusal of the memo of appeal will demonstrate that the employee has not pleaded or made any statement that she was not gainfully employed elsewhere after the termination of her services. Such statement does not appear in the previous Writ Petition bearing No. 8419 of 2012. Perusal of the present petition also indicates that the statement with respect to non-gainful employment is not made. At the stage when the present petition was part-heard and arguments were advanced on the aspect of payment of back wages, the learned Advocate for the petitioner tendered an affidavit on 28/09/2026, stating that the petitioner/teacher was not gainfully employed elsewhere after termination of her service. Filing of the affidavit was accepted subject to objection by the management as regards acceptance of the affidavit at a belated stage and also by granting leave to the management to file counter affidavit.
It is for the first time in the additional affidavit that a statement regarding non-gainful employment is made by the petitioner. The order of termination is dated 02/03/2009. The additional affidavit in which the statement of non-gainful employment is made is dated 24/09/2026. It is stated in the affidavit that the petitioner was not gainfully employed elsewhere after the termination of her services and that she was completely dependent on her husband for her financial needs. She also stated that she was around 43 years of age when the order of termination was passed against her, and as such, there was no possibility of being employed as a teacher at that time.
Perusal of the counter-affidavit filed by the management will demonstrate that an objection was raised with respect to acceptance of such an affidavit at a belated stage. It is also stated that the affidavit introduces a question of fact for the first time when the petition was part-heard, and as such, the statement should not be accepted.
Apart from this, learned Senior Advocate for the management states that the two members of the Inquiry Committee categorically recorded finding that almost all the charges were proved against the teacher, and that the teacher's representative had also held that the charges pertaining to irregularities in implementation of the Mid-Day Meal scheme were proved. He argues that all contentions on merits, except for compliance of Rule 37(6) of the MEPS Rules, were rejected by this Court in the earlier round of litigation, and therefore, if the petition succeeds now, it will succeed only on the technical ground of non-compliance of Rule 37(6). He, therefore, argues that in such situation, the employee is not entitled to the relief of back-wages. Learned Senior Counsel further contends that the employee has also not made any statement that she had made attempts to secure alternate employment after termination of her services which also is a relevant factor for not awarding the back-wages.
Learned Senior Counsel contends that unless the initial burden is discharged by the employee by making a statement on oath regarding non-gainful employment, the burden never shifts on the management to prove otherwise. Strong reliance in this regard is placed on the judgments of the Hon’ble Supreme Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and others, (2013) 10 SCC 324 and Allahabad Bank and others v. Avtar Bhushan Bhartiya (2022) 13 SCC OnLine SC 202. The relevant observations of the Hon’ble Supreme Court in Deepali Gundu Surwase (supra) in paragraph 38 are reproduced hereinbelow for ready reference:
“38.The propositions which can be culled out from the aforementioned judgments are: -
38.1In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2.The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3.Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.”
Having heard the rival submissions of learned Counsel for the respective parties on the point of back wages, this Court finds that the order of termination is set aside only on the ground that the procedure under Rule 37(6) of the MEPS Rules was not scrupulously followed, inasmuch as, the findings and recommendations in inquiry report are not arrived at jointly as contemplated under Rule 37(6). It also appears from the record that although the teacher’s representative insisted for following the procedure of filing a joint report, he has also delayed the inquiry. Apart from this, some of the charges are held to be proved even by the teacher's representative. Till the stage of joint deliberations, the procedure of inquiry is followed properly. The statement with respect to non-gainful employment was introduced by the teacher for the first time when the writ petition was part-heard. It must also be stated that the teacher was employee of a private school. Rule 9(4)(a) of the MEPS Rules provides that the age limit for appointment of an employee in primary school is from 18 to 28 years. Proviso to Rule 9(4)(a) contemplates that the upper age limit can be relaxed in case of a female employee subject to prior approval of the Director.
Although judgment in the case of Deepali Gundu Surwase (supra) records that the initial burden of proving non-gainful employment is on the employee and that such burden can be discharged by making a statement before the first Court with respect to non-gainful employment, the said observations are made with the caveat that such course must ordinarily be followed. The judgment in the case of Deepali Gundu Surwase (supra) cannot be interpreted to mean that other attending circumstances cannot be taken into consideration while considering the case for awarding back-wages. The Hon’ble Supreme Court has stated that ordinarily the employee must plead or make a statement before the first authority that he was not gainfully employed elsewhere. In the present case, at the time of termination of her services, the petitioner had crossed the upper age limit for appointment to the post of Assistant Teacher in a primary school. It is understandable that it must have been difficult for her to secure alternate employment. However, there are no pleadings in this regard either in the memo of appeal or in the first petition or in the present petition. The record will also demonstrate that on 14/10/2025, last chance for advancing the arguments was granted to the petitioner. Vide order dated 20/11/2025, the petition was ordered to be listed under the caption "For Dismissal". The order dated 20/11/2025 records that on several occasions, hearing of the petition was adjourned at the behest of the petitioner.
It must also be stated that although the statement about non-gainful employment is now made at the stage hearing when hearing of the petition was part-heard, there is no statement in the affidavit that despite attempts to secure alternate employment, the petitioner could not find the same. Although the petitioner had crossed the upper age limit for appointment to the post of Primary School Teacher, on which he was working, the other avenues for employment were not foreclosed.
It will also be appropriate to refer to the judgment passed by this Court in the case of Bhausaheb Rajaram Dhanwate vs. Mula-Pravara Electric Co-operative Society Limited, 2014 SCC OnLine Bom 323 wherein this Court held in paragraph no. 7, as under:-
“7.The petitioner could have lead oral and documentary evidence to establish the fact that he had made several attempts for securing employment after his termination. Efforts put in to secure employment can be considered as an important factor to support the case of the employee for seeking back wages. Absence of evidence on this count cannot entitle a workman to claim back wages.”
It will also be appropriate to refer to the judgment passed by this Court in the case of Executive Engineer vs. Pundlik Sitaram Tayade, 2015 SCC OnLine Bom 8323 wherein this Court held in paragraph no. 21 as under:-
“21.It is, therefore, apparent that the Labour Court is not empowered to mechanically grant the back wages. It needs to be established that the workmen had made a proper effort for seeking alternate employment and despite their efforts, could not secure such an employment.….”
In the above referred judgments, this Court has held that in order to claim relief of back-wages, apart from stating that he/she was not gainfully employed elsewhere, the employee must also bring on record the attempts made in order to secure alternate employment. In the case at hand, the teacher has not made any statement as regards attempts made by her in order to secure alternate employment.
In the light of the reasons recorded, the petitioner is not entitled for relief of back-wages. Hence, the following order is passed:-
Writ Petition is partly allowed.
The judgment and order dated 18/02/2016 passed by the learned Presiding Officer, School Tribunal, Aurangabad Region, Aurangabad, in Appeal No. 11/2009 is hereby quashed and set aside.
The order of termination dated 02/05/2009 issued by respondent no. 1 - management is quashed and set aside.
The respondent no. 1 - management is directed to reinstate the petitioner to her original post of Assistant Teacher with continuity of service along with all consequential benefits, excluding the back-wages, within a period of four (4) weeks from today.
The parties to bear their own costs.