Taramati Bafna Blind School & Anr. vs District Social Welfare Officer & Ors.

Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.

By way of the present Writ Petition, the Petitioner-Management (Taramati Bafna Blind School) assails the legality, propriety, and correctness of the judgment and order dated 22.09.2014 passed by the Divisional Social Welfare Officer, Aurangabad, in Appeal No. 02/2010. By the impugned order, the Appellate Authority allowed the appeal preferred by Respondent No. 2, thereby quashing and setting aside the Petitioner’s termination order dated 05.10.2010 with further directions to reinstate Respondent No. 2 with continuity of service, along with the payment of full backwages from the date of termination until reinstatement, and the release of unpaid suspension allowances for the period from 18.02.2009 up to 05.10.2010.

The Petitioner No. 1 is a registered public trust running Petitioner No. 2, an educational institution and residential hostel dedicated to completely and partially blind students. Respondent No. 2 was originally appointed on 01.11.1996 purely on a temporary basis as a helper, working in the hostel kitchen and preparing food for the resident students.

According to the Petitioners, the conduct of Respondent No. 2 was consistently irresponsible, and marked by absenteeism and insubordination. Matters escalated in the year 2008 following written complaints from co-workers and the hostel warden regarding the use of abusive language and refusal to perform duties by Respondent No.2. Consequently, after attempting to serve suspension notice which the respondent allegedly read and rejected, the Management placed Respondent inquiry.

The suspension order was challenged by Respondent No. 2 before the Divisional Social Welfare Officer, who allowed appeal on 12.10.2009. The Management assailed the said Court, wherein stayed the operation of order.

The Management appointed an Inquiry Officer on 25.08.2009 to inquire the charges of misconduct. Though the charge-sheet and subsequent hearing notices were dispatched and served by RPAD to Respondent No.2, failed to participate or nominate her representative. The inquiry proceeded ex-parte, culminating in an inquiry report dated 06.09.2010 that found all charges proved and recommended dismissal. Acting on this recommendation, the Management terminated the services of Respondent No. 2 on 05.10.2010.

Aggrieved by the termination, Respondent No. 2 preferred an appeal under Section 86 of the Handicap School Code (hereafter referred to as “the Code”). On 22.09.2014, the Divisional Social Welfare Officer allowed the appeal, holding that the inquiry committee was not validly constituted under Section 83(2), exceeded the statutory 120-day limit under Section 84(f), and failed to serve proper notice. The same is under challenge before this Court.

Learned counsel for the Petitioner-Management, vehemently submits that the impugned order is ex-facie illegal and suffers from a gross error apparent on the face of the record. The Appellate Authority exceeded its jurisdiction by allowing the appeal on technical grounds, such as the formation of the committee and the 120-day timeline. Those were neither pleaded in the respondent’s appeal memo nor argued during the hearings, denying the Petitioner a fair opportunity to respond in breach of natural justice. The delay in completing the inquiry was entirely attributable to the respondent's own non-cooperative tactics and parallel litigations and cannot now use procedural timelines having waived right to participate deliberately evading hearing notices.

The learned counsel further contends that Petitioner No. 2 – school is a sensitive residential hostel of completely and partially blind children. The helper who is insubordinate, abusive and hostile directly threatens the safety, discipline. Respondent No. 2 neither pleaded nor proved that employee was not gainfully employed elsewhere following her termination, making the award of full backwages contrary to settled service jurisprudence and an unfair financial burden on a charitable institution.

Learned AGP and the learned Counsel for the Respondent no. 2 have supported the order under challenge and prayed to dismiss the petition.

Having heard the submissions of the learned counsel for the Petitioner-Management and having examined the record, the Petitioner's grievance is that the Appellate Authority traveled beyond the pleadings by striking down the disciplinary action on technical grounds not raised by the employee, and that the employee’s conduct justified the ex-parte process.

Upon considering the statutory framework, this Court finds that Section 83(2) of the Handicap School Code, 1997, mandates that a three-member Inquiry Committee must be constituted to conduct a departmental inquiry against an employee. The record explicitly reveals that the Petitioner-Management bypassed this mandatory provision and unilaterally appointed an Inquiry Officer. When a statute requires a thing to be done in a certain manner, it must be done in that manner alone or not at all. The management cannot subvert a mandatory three-member tribunal structure into a one-man inquiry, regardless of the employee's non-cooperation. A single-member inquiry conducted in flagrant violation of Section 83(2) is structurally defective and renders the entire proceeding void ab initio. The appointed inquiry officer is to conduct an inquiry in relation to charges and submit report with the disciplinary authority.

Upon receipt of report, the disciplinary authority, extending an opportunity to the delinquent employee, shall render the decision of imposing penalty. The material placed before this court does not reveal record indicating notice to delinquent employee prior to the decision by disciplinary authority imposing major penalty of dismissal. When confronted with same, learned counsel for the Petitioners fairly concedes with same.

In absence of above, the decision imposing major penalty cannot be regarded as legally sustainable, therefore, rightly quashed by the appellate authority.

Moreover, Section 84(f) of the Code strictly mandates that a departmental inquiry must be completed within a maximum period of 120 days from the date of suspension. In the present case, Respondent No. 2 was suspended on 18.02.2009, but the inquiry report was submitted only on 16.08.2010. While the Petitioner submits that the delay was occasioned by the employee's litigious tactics, the statute strictly requires the management to seek a formal extension of time from the Divisional Social Welfare Officer if the timeline is not adhered. The management failed to obtain or even apply for such an extension. Upon the expiry of the statutory 120 days without an authorized extension, the continuation of the inquiry becomes statutorily unsustainable.

The Petitioner’s contention that the Appellate expressly pleaded by the employee does warrant consideration. A gross violation of statutory rules governing disciplinary inquiries goes to the very root of the jurisdiction of the domestic tribunal. Since these statutory lapses, the invalid one-man constitution and the expiration of the 120-day mandatory limit, were correct on the face of the record, the Appellate Authority was justified in taking cognizance to prevent a miscarriage of justice. Therefore, the impugned order quashing the termination dated 05.10.2010 and directing reinstatement with continuity of service does not suffer from any perversity and must be upheld.

However, this Court finds merit in the Petitioner’s submission regarding the grant of full backwages. The law governing backwages is fairly settled. The backwages are no longer a mechanical or automatic consequence of reinstatement. The initial burden lies on the employee to specifically plead and establish through prima facie evidence that employee was not gainfully employed elsewhere during the period of termination.

A perusal of the record indicates that Respondent No. 2 completely failed to discharge this baseline burden, as there are no explicit pleadings or proof demonstrating lack of gainful employment from 2010 onwards.

Petitioner No. 2 is an educational institution and residential hostel caring for completely and partially blind children, a sensitive environment requiring discipline. While the procedural illegalities of the management vitiate the termination. However, to balance the scales of justice, the impugned order requires modification to reduce the financial liability imposed on the educational institution.

In view of the aforesaid discussion, I pass the following order:-