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Judgment
M.S. Sonak, J—This petition challenges the judgment and order dated 31 January 2003 made by the School Tribunal, Kolhapur, dismissing the petitioner''s appeal against the termination of her services with effect from 20 January 2000.
The petitioner was appointed as an Assistant Teacher on probation with effect from 2 October 1978 established by respondent Nos. 1, 2 and 3 (said school). Upon satisfactory completion of probationary period, services of the petitioner were confirmed. Thereafter with effect from 1 September 1988, the petitioner was promoted to the post of Head Mistress. In the years 1990 and 1999, the services of the petitioner were transferred to other schools established by respondent Nos. 1,2 and 3. It is the case of the petitioner that because the petitioner resisted in settlement of some false and fabricated bills, the school management issued chargesheet dated 19 August 1999 to the petitioner. In pursuance of such chargesheet, inquiry was held and based upon the Inquiry Report, the petitioner was dismissed from services with effect from 20 January 2000. By the impugned judgment and order dated 31 January 2003, the School Tribunal Kolhapur has dismissed the petitioner''s appeal. Hence, the present petition.
Mr. N.V. Bandiwadekar, learned counsel for the petitioner made the following submissions in support of the petition:
"(a) That since the said school was a Private Primary School governed by the provisions of the Bombay Primary Education Act, 1947, in the light of law laid down by the Full Bench of this Court in case of Smt. Komal Rugwani Vs. State of Maharashtra and Others, (2011) 4 ALLMR 223 : (2011) 4 BomCR 459 : (2011) 113 BOMLR 2078 : (2011) 4 MhLj 301 , the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (said Act) or the Rules made thereunder (said Rules) did not apply. Consequently, the inquiry held by the said schools in purported compliance with the provisions contained in the said Act or said Rules, was a nullity. The termination, based upon such inquiry, is also a nullity;
(b) Assuming that the provisions of the said Act and the said Rules were applicable, then there is a clear breach of the provisions therein, in view of the following:
(i) In breach of Rule 37(1) of the said Rules, the chargesheet was never issued by the President of the school management;
(ii) In breach of Rule 36(2)(b)(ii) of the said Rules, the President of the school management, was not the member of the Inquiry Committee;
(iii) In breach of Rule 37 of said Rules, the petitioner was not furnished documents alongwith the chargesheet and further denied opportunity to examine witnesses in support of her defence;
(iv) In breach of the law laid down by the Hon''ble Apex Court interpreting the provisions contained in Rules 36 & 37 of the said Rules, no combined report, was furnished by the members of the Inquiry Committee.
(c) The inquiry proceedings, even otherwise, were in breach of principles of natural justice and fair play. In the matter of opportunity of defence, the members of the Inquiry Committee rushed through the proceedings, denying the petitioner reasonable opportunity. Several orders were made, only by the convener of the Inquiry Committee, which contributed to denial of reasonable opportunity to the petitioner. After witness summons was declined or returned unserved, no opportunity was afforded to the petitioner to bring forth her witnesses or examine the same. In short, the inquiry was vitiated for failure to comply with the principles of natural justice and fair play;
(d) The charges levelled against the petitioner were vague and in any case trivial. The imposition of penalty of dismissal in the facts and circumstances, was grossly disproportionate."
Mr. M.S. Topkar, learned counsel for respondent Nos. 1 to 3, i.e., said school and school management, at the outset, submitted that if the petitioner''s first contention with regard to inapplicability of the provisions by the said Act and said Rules is to be accepted, then it is clear that the petitioner''s appeal under Section 9 of the said Act before the School Tribunal was incompetent. The petitioner, in such circumstances, cannot be said to have questioned her termination, before the proper forum till date. On this short ground, the present petition is required to be dismissed.
In the alternate, Mr. Topkar, countered the petitioner''s contentions and submitted that the inquiry proceedings were not only held consistent with the provisions contained in the said Act or said Rules, but further there was every compliance with the principles of natural justice and fair play. The School Tribunal, has accepted this position and there is neither any perversity nor any jurisdictional error involved in the consideration so recorded. The charges established against the petitioner, were of serious nature and penalty of dismissal from services was both commensurate and proportionate.
The rival contentions now fall for determination.
If the first contention raised by and on behalf of the petitioner, with regard to the inapplicability of the provisions of said Act or said Rules is to be accepted, then it would be difficult to ignore Mr. Topkar''s contention, with regard to the very maintainability of the appeal under Section 9 of the said Act, in the light of the decision of the Full Bench in case of Komal Rugwani (supra). However, at this point of time, to hold that the petitioner''s appeal before the School Tribunal was itself incompetent, would be too harsh a view to take in the peculiar facts and circumstances of this case. As noted earlier, the termination in the present case, dates back to the year 2000. The appeal before the School Tribunal was disposed of on 31 January 2003. Admittedly, the said school or school management never raised the issue of maintainability of the appeal. These circumstances, are sufficient for a writ Court, deciding the matter in the year 2015, to reject the contention as to the very maintainability of the appeal. Besides, as of now, any remedy, that might have been available to the petitioner under the provisions of the Bombay Primary Education Act, 1947, may not be available, in view of repeal of the Bombay Primary Education Act, 1947 consequent to the coming into force of Right of Children to Free and Compulsory Education Act, 2009 (Act 2009)and Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 (Rules 2011).
Further, in the context of interpretation of the provisions of the aforesaid two acts, Division Bench of this Court in case of Latika Rajaram Mane Vs. State of Maharashtra and Others, (2013) 4 ABR 114 : (2013) 4 ALLMR 59 : (2014) 3 BomCR 439 : (2013) 138 FLR 649 : (2013) LabIC 2502 : (2013) 4 MhLj 244 , has held that that the Forum of School Tribunal is now provided to employees of primary schools in the State of Maharashtra, who are aggrieved by any decision of the management regarding their conditions of service, including in particular matters referred to in Rule 20 of Rules 2011. Accordingly, the position in law, which held the field prior to framing of the Rules 2011, has now been materially altered as a result of which a right of appeal is provided to the teachers of primary schools in respect of decision falling within the purview of Rule 20 of Rules 2011.
In the context of the decision of the Full Bench of this Court in case of Komal Rugwani (supra), the Division Bench, has in terms held that the framing of the Rules under the Right to Education Act, by the State Government has fundamentally altered the legal position, which held the field when the decision in the case of Komal Rugwani (supra) was rendered. The circumstance that the termination of an employee was effected prior to the coming into force of the Right to Education Act or the Rules of 2011, did not make any significant difference on the issue of maintainability of the appeal pending before the School Tribunal or instituted after the coming into force of the Rules 2011. In such circumstances, even the present matter was required to be reconsidered, then the School Tribunal would perhaps be the appropriate authority in the light of repeal of the Bombay Primary Education Act, 1947 and the coming into force of Rules 2011. For all these reasons, in the exercise of extra ordinary jurisdiction under the Article 226 of the Constitution of India, it may not be appropriate to non-suit the petitioner at this length of time, on the ground that the appeal instituted by her in the year 2000 was not maintainable.
At the same time, however, Mr. Bandiwadekar''s contentions with regard to the alleged non-compliance of MEPS Rules 1981, shall have to be rejected. The only question, which will therefore, survive consideration is whether the inquiry proceedings were held in consonance with the principles of natural justice and fair play and whether the petitioner was afforded reasonable opportunity in the matter of her defence.
The records of the inquiry, broadly indicate the following:
"(i) That in the first sitting held on 23 September 1999, the Inquiry Committee, despite opposition from the petitioner, permitted the Presenting Officer to take assistance from some employees, in the matter of conduct of inquiry;
(ii) At the second sitting held on 5 October 1999, the petitioner made an application for dropping of the inquiry proceedings, on the ground its convener was not the President of the Managing Committee as required under the MEPS Rules, 1981;
(iii) At the third sitting held on 13 October 1999, the school management submitted reply, opposing the petitioner''s application for dropping of the inquiry;
(iv) At the fourth sitting held on 23 October 1999, the Inquiry Committee dismissed the petitioner''s application;
(v) At the fifth, sixth and seventh sittings held on 3 November 1999, 9 November 1999 and 21 November 1999, some witnesses on behalf of the school management came to be examined;
(vi) At the eighth sitting held on 27 November 1999, the petitioner''s application for adjournment to cross-examine PW-3 Rekha Bhoite was rejected;
(vii) At the ninth, tenth and eleventh sittings, held on 1 December 1999, 8 December 1999 and 12 December 1999, examination of the management witnesses proceeded. The petitioner''s application for verification of handwriting of Rekha Bhoite was rejected on 8 December 1999;
(viii) On the twelfth sitting held on 18 December 1999, the petitioner''s application for verification of handwriting of Mr. K.B. Patil was rejected. The petitioner''s objection with regard to taking on record documents, copy of which was not furnished to the petitioner alongwith the chargesheet, was rejected. The petitioner''s application to cross-examine the witnesses, was rejected;
(ix) On 21 December 1999, the petitioner applied for issuance of witness summons to the three witnesses. On 23 December 1999, the Inquiry Committee issued witness summons to only two witnesses, requiring them to attend the inquiries on 25 December 1999;
(x) At the thirteenth sitting held on 25 December 1999, since it was noticed that the witness summons had not been actually served upon the witnesses, the petitioner applied for adjournment to examine the witnesses. However, the application was rejected and the evidence of the petitioner was closed;
(xi) At the fourteenth sitting on 7 January 2000, the Presenting Officer made the oral arguments;
(xii) On 18 January 2000, the petitioner was furnished with Inquiry Committee Report and called upon to submit explanation within 24 hours, i.e., on or about 19 January 2000. The petitioner applied for additional time, considering the Inquiry Report ran into number of pages. This was not responded to; and
(xiii) On 19 January 2000, the school management resolved to dismiss the petitioner from the services. In pursuance thereof, on 20 January 2000, the petitioner was actually dismissed from the services."
On the aspect of afford of reasonable opportunity to the petitioner, it does appear that such opportunity was denied to the petitioner, particularly from the stage of petitioner''s evidence by way of defence. The Learned counsel for the parties stated and submitted that it is the practice that the Inquiry Committee issue summons to the witnesses. This may not be summons in the strict sense, but the same are request letters intimating the witnesses of the date, venue and purpose of the inquiry. It was submitted that such witness summons enable the witnesses to obtain leave from their respective employers, or otherwise facilitate attendance at the inquiry. Consistent with this practice, upon the request of the petitioner, the Inquiry Committee did issue witness summons to two out of three witnesses. The Inquiry Committee cannot be faulted with issuing witness summons to only two witnesses, because the third witness was none other than the husband of the petitioner, whom the petitioner could have always produced and examine. Nevertheless, the witness summons to the two witnesses were made returnable within 48 hours. On the appointed dated, i.e., 25 December 1999, even though the witness summons were not actually served upon the said witnesses, the petitioner''s application for adjournment to examine the said witnesses was summarily rejected and the petitioner''s evidence was ordered to be closed. Further, although the issue as to whether or not furnish of copy of Inquiry Report is relevant, in the present case, such copy was furnished to the petitioner, requiring her to submit a response within a mere 24 hours. The petitioner''s plea for some reasonable time was rejected and upon expiry of 24 hours, the school management resolved the dismissal of the petitioner. Therefore, there is justification in the petitioner''s contention that the inquiry proceeding did deny reasonable opportunity to the petitioner in the matter of her defence, particularly, if the several circumstances as aforesaid, are cumulatively considered.
It is also necessary to make reference to the charges levelled against the petitioner in the chargesheet dated 19 August 1999;
"(a) The first charge alleges that the petitioner was rude in her behaviour with the other employees in the said school and created an atmosphere of terror. By way of substantiation, it was alleged that on 24 April 1999, the petitioner required the school teachers to wait until 6.00 p.m. though the normally school timings are between 8.00 a.m. to 12 noon. Similarly, it was alleged that on 26 April 1999, some teachers were required to stay back without any reasons. The petitioner''s defence was that the teachers were required to work over time, in view of examination related duties. It is further alleged that, by way of substantiation that the petitioner addresses her male counterparts, in unitary terms, thereby indicating disrespect and on some occasions even required a male employee to wash her TVS Scooty. It is further alleged that the petitioner insults the staff members in front of parents and issue memos without cause;
(b) The second charge levelled against the petitioner is that the petitioner, with a view to defame her colleague Ms Rekha Bhoite, alleged some incident involving some moral turpitude on her part. The date of this incident is stated to be 15 March 1999. The complaint about this incident was made by Ms Rekha Bhoite on 20 April 1999. It is the case of the petitioner that the said Rekha Bhoite was in fact absent on 15 March 1999; and
(c) The third charge alleges that the petitioner addressed correspondence to the school board and also furnished to the school board certain confidential correspondences, without obtaining permission from the school management. As a result of this, the authorities, withdrew recognition to the Marathi Medium Section, thereby occasioning serious prejudice to the students."
Since, the school management regards the aforesaid charges as sufficient for imposition of penalty of dismissal from service, it was necessary that the inquiry into the charges is held in accordance with the principles of natural justice and fair play. In particular, it was necessary that adequate opportunity of defence is furnished to the petitioner. In this case, as noted earlier, it cannot be said that the reasonable opportunity of defence was furnished to the petitioner. The inquiry, in the circumstances, stands vitiated and the dismissal order based thereupon is liable to set aside.
In case of Saindranath Jawanjal Vs. Pratibha Shikshan Sanstha and The Presiding Officer (Additional), School Tribunal, (2007) 4 ALLMR 281 : (2007) 3 BomCR 527 , the Full Bench of this Court has held that in a situation where the inquiry is found to be vitiated on account of non-compliance of principles of natural justice or for any technical reason, the employee concerned can be directed to be reinstated, for the purposes facing the inquiry and issue of backwages would depend upon the result of fresh inquiry. This is because, the school management is also required to be given an opportunity to re-conduct the inquiry proceedings, from the stage at which the proceedings strayed away from the principles of natural justice and fair play. Of course, in the matter of grant of such opportunity, this Court is required to consider several factors including magnitude of charge as well as equities involved. In the facts and circumstances of the present case, it is necessary to afford fresh opportunity to the school management to conduct inquiry consistent with principles of natural justice and fair play. As noted earlier, there was indeed the issue of applicability of MEPS Act and Rules made thereunder, in the matters of such inquiry. Further, this is not a case where the school management has not held any inquiry at all. Rather this is a case where the school management has held an inquiry, but the same was deficient, when it came to afford of reasonable opportunity to the petitioner. In case of U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, (2006) 101 CLT 160 : (2005) 107 FLR 729 : (2005) 12 JT 242 : (2005) 8 SCC 264 : (2006) SCC(L&S) 78 : (2005) 1 SCR 603 Supp : (2006) 1 SLJ 1 , the Hon''ble Apex Court has held that where departmental inquiry is found to be vitiated for non-compliance with principles of natural justice, the punishment order can be set aside and the employee concerned reinstated. However, such reinstatement on setting aside of the inquiry, should be treated as reinstatement for the purpose of holding inquiry and no more. The employee, in a normal course, in such a situation, would not be entitled to backwages and other benefits, which will have to abide by result of the fresh inquiry.
In light of the aforesaid, the impugned judgment and order made by the School Tribunal on 31 January 2003, is set aside. The order dated 20 January 2000, by which the petitioner was dismissed from the services is also set aside. The petitioner is directed to be reinstated, but without any backwages. The school/school management shall be at liberty to hold fresh departmental inquiry within a period of three months. In the course of such departmental inquiry, the school/school management shall ensure that there is compliance with the principles of natural justice and fair play and further the reasonable opportunity to be given to the petitioner, in the matter of her defence. The issue of backwages shall abide by the result of the inquiry proceedings.
Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
In view of disposal of the petition, Civil Application No. 1085 of 2012 does not survive and the same is disposed of, accordingly.