w w w . L a w y e r S e r v i c e s . i n



Mahalaxmi Shikshan Sanstha V/S State of Maharashtra and Others.


Company & Directors' Information:- MAHALAXMI PRIVATE LIMITED [Strike Off] CIN = U71101UP1946PTC001531

Company & Directors' Information:- MAHALAXMI COMPANY PRIVATE LIMITED [Active] CIN = U99999MH1945PTC004455

    Writ Petition No. 1024 of 1985

    Decided On, 08 January 1998

    At, High Court of Judicature at Bombay

    By, THE HONORABLE JUSTICE: R.M. LODHA

    For Petitioner: Navin Parekh, Advocate. i/b Mehta & Girdharlal And For Respondent: Rajiv Mane, Advocate. and V.V. Pai, A.G.P.



Judgment Text

1. The petitioners, by means of this writ petition filed under Article 226 of constitution of India seek to assail the legality and correctness of the order dated 16-4-85 passed by the School Tribunal. Bombay Region, Bombay whereby the said tribunal set aside the notification dated 31st July, 1984 issued by the petitioners removing the respondent No. 3 herein from the post of Headmaster and directed the petitioners to reinstate the respondent No. 3 herein in the same post with consequential benefits.

2. The first petitioner Mahalaxmi Shikshan Sanstha, Mumbai is the public trust and runs a school known as Vidyamandir High School. The second petitioner is a Chairman of the trust namely the first petitioner. Shri. Jagannath Gajanan Jadhav who is impleaded as respondent No. 3 herein and hereinafter referred to as an 'employee' was appointed as Headmaster on 13-6-79 by the management of the first petitioner, hereinafter referred to as 'management'. The employee was temporarily suspended on 29-2-80 on the allegation of lack of satisfactory performance and dereliction of duties. According to the management on 4-3-1980, Director of Education superseded the school administration and appointed an administrator to run the school. The employee is alleged to have not handed over charge as Headmaster inspite of an administrator having been appointed and that led to the litigation before this Court by way of writ petition filed by the management, in which the employee was directed to handover charge. It is the case of the management that on 8th January, 1983 the then administrator terminated the services of the employee and the said order came to be passed because of the failure of the employee to submit proper accounts for the years 1977-78, 1978-79 and 1979-80, and, also due to employee's refusal to accept the full workload of teaching and his absence from the school. The order of administrator terminating the employee's services was challenged by the employee in appeal before the Director of Education who by the order dated 11th January, 1984 set aside the employee's termination. However, the management was granted liberty to hold the enquiry against the employee for his alleged omissions and commissions and misconduct in accordance with the Maharashtra Employees of Private School Rules. 1981 (for short, 'Rules of 1981'), and proceed against the employee accordingly. The management thereafter in its meeting held on 14th January, 1984 decided to hold an enquiry against the employee for his alleged misconduct. By the provisional order dated 11th January, 1984, the employee was temporarily suspended by the management and by the order dated 20th February, 1984 of the management, the employee's suspension pending enquiry was confirmed and statement of allegations were served upon the employee somewhere in the month of February, 1984. No written explanation or reply is alleged to have been received by the management pursuant to the service of the statement allegations within seven days from its receipt and accordingly the management decided to hold an enquiry under the Rules of 1981 and accordingly by the Resolution of 25th March, 1984, an Enquiry Committee was constituted whereby the President of the management was nominated as convener of the Enquiry Committee and the management also nominated Shri G.J. Raut as member of Enquiry Committee. The employee was asked to nominate his member on the Enquiry Committee by the communication dated 3-4-84. The employee was intimated that name and address of his nominee with his consent letter should reach the convener of the Enquiry Committee on or before 23-4-1984 and in case of employees failure to nominate his member to Enquiry Committee on or before the stipulated period, the Enquiry Committee of two members constituted shall start to enquire with the matter. The employee was also sent charge-sheet and he was called upon to submit reply/ explanation on or before 23-4-84. It appears that on 19-4-84 the employee sent the communication to the Convener of the Enquiry Committee raising serious objections about the constitution of Enquiry Committee. In his communication dated 19-4-84, the employee alleged that appointment of the President of the management as convener of the Enquiry Committee is unconstitutional and that he did not expect any justice from such Enquiry Committee. According to employee, though he had mind to communicate the name and address of his nominee alongwith his letter of consent, in view of the fact that the Chairman of the management was convener of the Committee, he did not expect any justice from such Enquiry Committee. On 1-6-84 the Enquiry Committee sent a notice to the employee for appearing before the Committee on 15th June, 1984 and to give evidence touching the charges preferred against him. Admittedly, the management by that time had not produced any documents or any evidence before the Enquiry Committee and, Mr. Parekh the learned Counsel for the petitioner fairly submitted before me that the management tendered the documents in support of its case and the charges levelled against the employee on 15-6-84 for the first time before the Enquiry Committee. Mr. Parekh also submitted after carefully going through the enquiry record & proceedings of the enquiry available with him that copies of the said documents which were tendered by the management before the Enquiry Committee on 15-6-84 in support of its case and in proof of charges against the employee were not furnished to the employee. It appears that on 15-6-1984 the employee did not appear and as already stated above, the management tendered the documents in support of its case before the Enquiry Committee.

3. On 15-6-1984, according to the learned Counsel for the petitioner, the documents were tendered by the management but since there was want of coram, the meeting of the Enquiry Committee was adjourned to 19-6-1984. On 19-6-1984 on behalf of management Mr. B.M. Bamane appeared and nobody appeared on behalf of the respondent. The evidence of the witnesses of the management was recorded and the proceedings of the Enquiry Committee were adjourned to second week of July, 1984. It appears that on 22-6-84 the employee by hand delivery gave a letter to the Chairman of the management who is convener of the Enquiry Committee. In the said letter dated 22-6-84 the employee stated that he wanted to peruse all the relevant documents, registers, account books and vouchers for his defence and he also required authentic copies of the proceedings of the meetings of the Enquiry Committee held on 15th and 19th June, 1984, alongwith copies of the statement of any witnesses recorded by the Enquiry Committee on the above dates. He prayed for any date between 26-6-1984 to 28-6-1984 so that he could appear before the Enquiry Committee and on that date the requisite copies of the documents in the proceedings and the statement of the witnesses may be supplied to him. He also prayed that he may be intimated about the next date of hearing of the Enquiry Committee to enable him to remain present on that date. It appears that on 7th July, 1984 Enquiry Committee could not proceed for want of coram and the proceedings were adjourned to 8-7-1984. On 8-7-1984 the summary report was prepared by the Enquiry Committee and sent to the management and a copy thereof was despatched to the employee which was received by him on 12th July, 1984. On 26-7-1984 the Enquiry Committee prepared supplementary summary report and on 27-7-1984 the report with recommendations were prepared by the Enquiry Committee.

4. It would not be out of place to mention here that the employee submitted a detailed reply before the Enquiry Committee to the charges levelled against him on 25-7-84. The Enquiry Committee held the charges proved against the employee and found the employee guilty of misconduct and misbehaviour of serious nature. The Enquiry Committee sent the copy of its report to the employee by the communication dated 30th July, 1984. The management by notification dated 31st July, 1984 removed the employee from service. The said notification came to be challenged by the employee before the Tribunal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for short, 'Act of 1977'). The school Tribunal after hearing the parties held that the enquiry proceedings suffered from serious violation of principles of natural justice and that employee was not accorded sufficient opportunity in the enquiry, and, therefore, the enquiry held against the employee was not proper and legal and the finding given by the Enquiry Committee were not valid. The School Tribunal accordingly by the impugned order dated 16-4-85 allowed the appeal, set aside the notification dated 31st July, 1984 removing the employee from service and directed the management to reinstate the employee in the same post he was holding at the time of removal and to pay the employee difference of evolution including pay and allowances as due and payable to him after deducting subsistence allowance. The said order dated 16-4-85 is sought to be assailed in the present writ petition.

5. Mr. Navin Parekh, the learned Counsel appearing for the petitioner management vehemently urged that employee was given full opportunity to defend himself before the Enquiry Committee, but despite the opportunity given to him he did not avail of the same and, therefore, the Tribunal was not justified in holding that principles of natural justice were not followed in the enquiry and that employee was not given reasonable opportunity of defending himself in the enquiry proceedings. Mr. Parekh, the learned Counsel for the petitioner would urge that neither any response to the notice given to the employee by the management for nominating his nominee in the Enquiry Committee was given nor before the Enquiry Committee the employee submitted any reply despite notice given to him and, therefore, the Tribunal was not justified in holding that no reasonable opportunity was given to the employee. In support of his contentions, Mr. Parekh, the learned Counsel appearing for the petitioner relied upon few decisions of the Apex Court viz. (i) Jethmal v. Union of India and another : AIR1970SC1310 . (ii) Sri. Gouranga Chakraborty v. State of Tripura and another: [1989]2SCR271 . (iii) Jaswant Singh Mathurasingh and another v. Ahmedabad Municipal Corporation and others : AIR1991SC2130 and, (iv) State Bank of Patiala, and others v. S.K. Sharma : (1996)IILLJ296SC .

6. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ('Act of 1977') was enacted to regulate the recruitment and Conditions of Service of employees in certain private schools in State of Maharashtra with a view to provide such employees security and stability of service to enable them to discharge their duties towards pupils a guardians in particular, and the institution and the society in general effectively and efficiently. In exercise of the powers conferred by subsections (1) and (2) of section 16 of Act of 1977 and all other powers enabling in this behalf, the Govt. of Maharashtra made the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The said Rules of 1981 provide procedure for imposing minor penalties and inflicting major penalties. An employee covered under the Act and the Rules framed thereunder is liable to be punished on one or more of the grounds; misconduct; moral turpitude; wilful and persistent negligence of duty; and, incompetence. Rules 36 and 37 which are relevant for the purposes of present writ petition deal with the Enquiry Committee and the procedure of enquiry instituted against an employee and the said rules read thus :

"36. Enquiry Committee.- (1) If an employee is allegedly found to be guilty of (any of the grounds specified in sub-rule (5) of rule 28) and the Management decides to hold an enquiry, it shall do so through a properly constituted Enquiry Committee. Such a Committee shall, conduct an enquiry only in such case where major penalties are to be inflicted. The Chief Executive Officer authorised by the management in this behalf and in the case of an enquiry against the Head who is also the Chief Executive Officer, the President of the management shall communicate to the employee or the Head concerned by registered post acknowledgement due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations.

(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 enquiry be conducted against the employee and if it decides to conduct the enquiry the enquiry shall be conducted by an Enquiry 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 conferred

(b) in the case of-the Head referred to in sub-rule (1)-

(i) one member who shall be the President of the management;

(ii) one member to be nominated by the Head from amongst the employees of any private school;

(iii) one member chosen by the President from the panel of Headmasters on whom State/National Award has been conferred.

(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub-rule (2) by registered post acknowledgement due to the employer or the Head referred to in sub-rule (1), as the case may be, directing him to nominate a person on his behalf on the proposed Enquiry Committee and to forward the name alongwith the written consent of the person so nominated to the Chief Executive Officer or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect.

(4) If the employee or the Head, as the case may be communicated the name of the person nominated by him the Enquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within stipulated period, the Enquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as provided in sub-rule (2).

(5) The Convener of the respective Enquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Enquiry Committee and shall maintain all the relevant record of the Enquiry.

(6) The meetings of the Enquiry Committee shall be held in the school premises during normal school hours or immediately thereafter, if the employee agrees and even during vacation.

37. Procedure of Enquiry (1) The management shall prepare a chargesheet containing specific charges and shall hand over same together with the statement of allegations and the explanation of the employee or the Head, as the case may be, to the Convener of the Enquiry Committee and also forward copies thereof to the employee or the Head concerned by registered post acknowledgement due, within 7 days from the date on which the Enquiry Committee is deemed to have been constituted.

(2)(a) Within 10 days of the receipt of the copies of the charge-sheet and the statement of allegations by the employee or the Head, as the case may be.

(i) If the employee or the Head, as the case may be, desires to tender any written explanation to the charge-sheet, he shall submit the same to the Convener of the Enquiry Committee in person or send it to him by the registered post acknowledgement due.

(ii) If the management and the employee or the Head, as the case may be, desire to examine any witnesses they shall communicate in writing to the Convenor of the Enquiry Committee the names of witnesses whom they propose to so examine, and

(iii) If the management desires to tender any documents by way of evidence before the Enquiry Committee, it shall supply true copies of all such documents to the employee or the Head, as the case may be. If the document relied upon by the management is a register or record of the school it shall permit the employee or the Head as the case may be, to take our relevant extracts from such register or record. The employee or the Head as the case may be, shall supply to the management true copies of all the documents to be produced by him in evidence.

(b) Within 3 days after the expiry of the period of 10 days specified in clause (a), the Enquiry Committee shall meet to proceed with the enquiry and give 10 days notice by registered post acknowledgement due to the Management and the employee or the Head, as the case may be, to appear for producing evidence, examining witnesses etc. if any.

(c) The Enquiry Committee shall see that every reasonable opportunity is extended to the employee for defence of his case.

(d) (i) The management shall have the right to lead evidence and the right to cross examine the witnesses examined on behalf of the employee.

(ii) The employee shall have the right to be heard in person and lead evidence. He shall also have the right to cross-examine the witnesses on behalf of the employee.

(iii) Sufficient opportunities shall be given to examine ali witnesses notified by both the parties.

(e) All the proceedings of the Enquiry Committee shall be recorded and the same together with the statement of witnesses shall be endorsed by both the parties in token on authenticity thereof. The refusal to endorse the same by either of the parties shall be recorded by the Convener.

(f) The Enquiry shall ordinarily be completed within a period of 120 days from the date of first meeting of the Enquiry Committee or from the date of suspension of the employee, whichever is earlier, unless the Enquiry Committee has, in the special circumstances of the case under Enquiry Committee has, in the special circumstances of the case under enquiry, extended the period of completion of the enquiry with the prior approval of the Deputy Director. In case the enquiry is to be completed within the period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties, without prejudice to continuance of the enquiry.

(3) The management and the employee or the Head, as the case may be shall be responsible to see that their nominees and the witnesses, if any, are present during the enquiry. However, if the Enquiry Committee is convinced about the absence of either of the parties to the dispute or any of the members of the Enquiry Committee on any valid ground, the Enquiry Committee shall adjourn that particular meeting of the Committee. The meeting so adjourned shall be conducted even in the absence of person concerned if he fails to remain present for the said adjourned meeting.

(4) The Convener of the Enquiry Committee shall forward to the employee or the Head, as the case may be a summary of the proceedings and copies of statement of witnesses, if any by registered post acknowledgement due within four days of completion of the above steps and allow him a time of seven days to offer his further explanation, if any.

(5) The employee or the Head as the case may be shall submit his further explanation to the convener of the Enquiry Committee within a period of seven days from the date of receipt of the summary proceedings etc., either personally or by registered post acknowledgement due.

(6) On receipt of such further explanation or if no explanation is offered within the aforesaid time the Enquiry Committee shall complete the Enquiry and communicate its findings on the charges against the employee and 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. It shall also forward a copy of the same by registered post acknowledgement due to the employee or the Head, as the case may be. A copy of the findings and decision shall also be endorsed to the Education Officer or the Deputy Director, as the case may be, by registered post acknowledgment due. Thereafter the decision of the Enquiry Committee shall be implemented by the Management which shall issue necessary orders within seven days from the date of receipt of decision of the Enquiry Committee, by registered post acknowledgment due. The Management shall also endorse a copy of its order to the Education Officer or the Deputy Director as the case may be."

7. A conjoint reading of the Rules 36 and 37 alongwith other provisions of Rules of 1981 would indicate that in elaborate and self contained procedure has been provided to enquire, into the allegations of misconduct, moral turpitude, wilful and persistent negligence of duty and incompetence of the employee covered under the Act and Rules. The procedure contained in Rules 36 and 37 dealing with the constitution of Enquiry Committee and procedure of enquiry is intended to ensure that every reasonable opportunity is extended to the employee for the defence of his case in the enquiry instituted against him. The procedure prescribed in Rules 36 and 37 is based on primary principles of natural justice and fair play to ensure that the employee of the private schools covered under the Acts and Rules is not condemned unheard. It provides enough opportunity to the employee to defend himself reasonably at all stages right from the time management decides to enquire into any misconduct, moral turpitude, wilful and persistent negligence of duty and incompetence of the employee and constitutes an Enquiry Committee proceeds with enquiry and submits its report. The Enquiry Committee is required to be constituted where major penalty is to be inflicted. Since in the present case the employee concerned is the Head of the school, I will confine myself to the procedure contemplated for holding enquiry against such Head of the school under Rules 36 and 37 of the Rules of 1981. First of all, Chief Executive Officer authorised by the management is required to communicate to the Head of the school by registered Post with AD the statement of allegations against him and seek written explanation from him within 7 days from the date of receipt of the statement of allegations. In case the head of the school sends the explanation within time, the Chief Executive Officer or the President of the management has to look into the said explanation and if the explanation is not found satisfactory, the matter has to be placed before the management, within 15 days from the date of receipt of explanation. The management, then is required to decide within 15 days whether an enquiry needs to be instituted against such employee. If the decision is in the affirmative, Enquiry Committee is to be constituted which would comprise of (i) the President of the management. (ii) the member to be nominated by the delinquent head from amongst the employees of any private school and (iii) any member chosen by the President of the management from the panel of Headmaster or to whom State/National Award has been conferred. The Chief Executive Officer or the President of the management, as the case may be, is required, then to communicate the names of the members of the Enquiry Committee, nominated by the management and also by directing the delinquent head to nominate his name on the Enquiry Committee and to forward the name of such nominee alongwith written consent within 15 days of the receipt of communication to that effect. If the delinquent communicates the name of the person nominated by him alongwith his consent within the aforesaid time, the Enquiry Committee of all 3 members shall be deemed to be constituted on the date of the receipt of such communication by the Chief Executive Officer or the President of the management as the case may be. However, if the delinquent employee fails to communicate the name of his nominee within the stipulated period, the Enquiry Committee shall be deemed to have been constituted of only 2 members. The President of the management is to be the Convener of the Enquiry Committee and is required Jo maintain all the relevant record of the enquiry. Meetings of the Enquiry Committee have to be held in the school premises during normal school hours or immediately thereafter and if the delinquent employee agrees during vacation. According to the procedure contemplated under Rule 37 the management has to prepare the charge-sheet containing specific charges and the said specific charge-sheet alongwith statement of allegation and the explanation of the delinquent employee, If any has to be handed over to the convener of the Enquiry Committee and copies thereof are required to be sent to the concerned delinquent employee by Registered post with AD within 7 days from the date of which the Enquiry Committee is deemed to have been constituted. If the delinquent employee desires to tender any written explanation to the charge-sheet he has to submit the same to the convener of the Enquiry Committee in person or sent by Registered post with AD within 10 days of the receipt of the copies of the charge-sheet and the statement of allegations. Within 3 days after the expiry of period of 10 days the Enquiry Committee is required to meet and notify the management and the delinquent by giving at least 10 days notice for producing documents and examining witnesses. The management if desires to examine any witnesses, it has to communicate in writing to the convener of the Enquiry Committee the names of witnesses whom it proposes to examine. Similarly, if the management desires to tender document/documents by way of evidence before the Enquiry Committee, it must supply true copies of such documents to the delinquent employee. The delinquent employee is also required to supply to the management the true copies of all documents to be produced by him in evidence. The emphasis is laid in Rule 37 that Enquiry Committee shall see that every reasonable opportunity is extended to the employee for the defence of his case. The management has right to lead evidence and the right to cross-examine the witnesses examined on behalf of the employee. Similarly the employee has right to be heard in person and lead evidence and he has also right to cross examine the witnesses examined on behalf of the management. The procedure of enquiry contemplated in Rule 37 also lays emphasis that sufficient opportunity shall be given to examine all witnesses intended by both the parties. The proceedings of the Enquiry Committee shall be recorded and the same together with statement of witnesses shall be endorsed by both the parties in token or authenticated thereof. If any of the parties refuse to endorse the same, such refusal is to be recorded by the convener of the Enquiry Committee. Ordinarily the enquiry is expected to be completed within 120 days from its first meeting or from the date of suspension of delinquent employee whichever is earlier. The Enquiry Committee is also given power to adjourn the date of enquiry on valid grounds. The convener of the Enquiry Committee is required to forward to the delinquent employee summary of proceedings and copies of statement of witnesses, if any, by Regd. post with AD within 4 days of completion of above steps and allow time by 7 days of his further explanation, if any. The delinquent employee, if so desires, is required to submit his further explanation to the convener of the Enquiry Committee within period of 7 days from the date of receipt of summary or other proceedings by Regd. AD. On receipt of such further explanation or if no explanation is offered by delinquent within the time prescribed, the Enquiry Committee shall complete the enquiry 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 delinquent employee. The answerable question in the present writ petition is whether the aforesaid procedure as contemplated under Rules 36 and 37 of the Rules of 1981 and particularly Rule 37 was followed by the Enquiry Committee or not.

8. At the outset I may observe that Mr. Navin Parekh, the learned Counsel appearing for the petitioner was asked to place before me the entire Record & Proceedings of the Enquiry Committee and in response thereto Mr. Parekh placed before me three sets of paperbook bearing the title: (i) "Summary report of minutes of proceedings of Enquiry Committee under Rule 37 Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981. (ii) 'supplementary to summary report on minutes of proceedings of the Enquiry Committee under Rule 37 Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, (iii) 'resolution dated 27-7-84 of managing Committee. Mahalaxmi Shikshan Sanstha Maryadit. Mumbai and report of Enquiry Committee under Rule 36 Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. This record according to Mr. Navin Parekh, the learned Counsel for the petitioner is the only record available with them. Mr. Parekh was given opportunity to produce the entire record and proceedings since the aforesaid record and proceedings did not seem to be complete-it did not have evidence of the witness examined. I have no option but to proceed with the assumption that this is the entire record and proceedings of the enquiry proceedings.

9. In the aforesaid background, I shall now examine whether the findings recorded by the Tribunal that the employee was not given reasonable opportunity to defend himself in the enquiry before the Enquiry Committee suffers from any error warranting interference by this Court in extra-ordinary jurisdiction or not.

10. By communication dated 20-2-84. The employee was sent statement of allegations, seeking his satisfactory explanation and to show cause why enquiry should not be instituted to enquire into the charges against him. No reply or explanation seems to have been received by the management to this notice and, accordingly the management decided to hold enquiry to enquire into allegations against the employee. The Enquiry Committee was constituted comprising of the President of the management as convener of the Enquiry Committee and Shri G.J. Raut is the nominee of the management and the employee was asked by the communication dt. 3-4-84 to nominate his nominee on the Enquiry Committee on or before 23-4-84 failing which it was made clear that the two member Enquiry Committee shall proceed-with the enquiry against him. On 19-4-84 the employee sent a communication to the President of the management objecting to his (President of the management) being member of the Enquiry Committee and its convener. The employee did not nominate his nominee within the time given in the communication dated 3-4-84. On the face of this factual position I find that the observation made by the School Tribunal that the management ought to have included the nominee of the employee on the Enquiry Committee even at the later stage was not justified. If the employee did not avail of the opportunity given to him to nominate his nominee on the Enquiry Committee as required under Rule 36, within the time given to him, the employee did so at his risk. The Enquiry Committee of two members viz. the President of the management and the nominee of the management thus came to be properly constituted. However, that is not the end of the matter. The question is whether the Enquiry Committee so constituted acted in accordance with law by following the procedure contemplated under Rule 37 and gave reasonable opportunity to the employee to defend himself in the enquiry. As I have already observed, Rule 37 provides elaborate procedure of the enquiry to be followed by the Enquiry Committee. From the original record & proceedings of the enquiry made available by the learned Counsel for the petitioner management, it would be seen that the following charges were framed against the enquiry (sic employee):

"1. You have wilfully committed breach of your duties as Headmaster Vidya Mandir High School, Bombay- 400 083, as per prescribed rules of S.S. Code 1979.

2. You have not maintained and kept properly school records, General Register in the form given in appendix EIGHTEEN; Attendance Register for all students in the form prescribed in appendix NINETEEN. Leave certificates received from their schools; counterfoils of leaving certificates issued to pupils: Records of pupils attainments and/or examination results; Records of health and medical examination of pupils; Answer books of the annual examination of the preceding years; Records of the pupils admitted with test prior to the inspection.

3. You have not maintained and kept properly school records of staff; Service Books of school employees vide appendix FOURTEEN; Register of attendance and leave to employees; Discharge certificates received from teachers employed in the school; Headmaster's log books (observations, supervision notes, suggestions to teachers, etc.) The remarks made in the log book about the employees should be shown to the employees concerned and their signatures obtained in token of their having seen the same; Form of confidential reports on teachers (vide appendix TWENTY).

4. You have not maintained and kept properly school records; Daily cash book; Ledger showing receipts and expenditure, including separate account for term fee; Fees account book; Provident Fund account register; Vouchers; Register of dead stock articles: Laboratory and Library register; Inward and outward registers.

5. You have not maintained and kept properly school files of orders, instructions, circulars and letters of correspondence; Minute books of school Committee and academic councils.

6. You have instructed your Advocate Mrs. S.H. Jadhav, at Nasik to issue notice to Mahalakshmi Shikshan Sanstha, Mumbai and The Chairman, Mahalakshmi Shikshan Sanstha Mumbai, Bombay- 83. Under your instructions your Advocate has issued unsigned and undated notice (carbon copy) on her letter head by Registered post A.D. No. 4542 on 27-2-84 at Nasik Post Office. This unsigned notice has no legal binding to Mahalakshmi Shikshan Sanstha, Mumbai. We ignore this notice of your Advocate.

7. You have given false information and instructions to your Advocate and filed declaratory suit as a regular Civil Suit No. 158/84 at Nasik Court on 14-2-84. Hearing of the suit was on 6th March, 1984. Nasik Court has no jurisdiction for hearing any suit against Mahalakshmi Shikshan Sanstha, Mumbai. No notice is received from Nasik Court in Civil Suit No. 185/84.

8. You have instructed your Advocate to threaten Mahalakshmi Shikshan Sanstha, Mumbai, by unsigned notice to stop Enquiry in matter of allegations served upon you. And you have attempted to create obstruction in Enquiry in matter of allegations 1984 dated 20-2-1984.

9. You have committed contempt of Court order of Id. Mody, J., dated 23.10.80 in Writ Petition No. 1176 of 1980. The Court order has directed you not to act as Headmaster and to hand over charge to respondent No. 3 of the petition or to his nominee. You have continued to act as Headmaster after the Court order and you have not handed over charge as directed to you.

10. You have worked in subordinate to your immediate superior authority. Administrator by office order dated 25-10-80 has directed you in compliance to High Court order dated 23-10-83 in Writ Petition No. 1175 of 1980 to hand over complete charge of the post of Headmaster to his nominee Asst. Headmistress Mrs. Vidya B. Barve. You have subordinated the order of Administrator and have not handed over complete charge of Headmaster.

10 A. You have provided false and fabricated information to the High Court in Writ Petition No. 1176 of 1980 in the order dated 12-1-81 that you have handed over charge of Headmaster as directed in order dated 23-10-80.

11. You have continued to work as Headmaster after High Court order dated 23-10-80 in Writ Petition No. 1176 of 1980. You have signed the muster roll and other official documents of the school after the said Court order in capacity of Headmaster.

12. You have successfully managed to provided false and fabricated informations to the Department of Education, Greater Bombay Region, Bombay and drawn salaries on scale of Headmaster after Court order on 23-10-80 in Writ Petition No. 1176 of 1980.

13. You have not maintained properly school accounts of tuition fees and term fees. You have not maintained properly cash book, Ledger book and dead stock registers of the school. You have not presented cash book. Ledger book, dead-stock register, vouchers and purchase bills to the auditor duly appointed to audit school account. Audits for the years 1977-78,1978-79 and 1979-80 are not completed and grants-in-aid for the years have not been received by the school.

14. You have purchased books from students' Agencies Swadeshi Mills Estate, Girgaon, Bombay 400 004 on the name of Vidya Mandir High School. You have not maintained vouchers, bills of purchase, stock-register, receipt and payment account. You have not paid bills of these purchases worth Rs. 20,872/- you have paid some of these bills by cheques from school accounts worth Rs. 22,800,05.

15. You have not deposited a sum of Rs. 53,741/- recoverable fees in Co-operative Bank account. And you have wilfully in subordinated instructions and directions of the management and the Educational Inspector as given in his letter No. A-18-P-4-NB/412-11630 of dated 4-1-80.

1.6. In the term fee account of 1977-78 you have debited bills of Anil Cyclostyling Services on the head of Examination Expenses. You have obtained substitute bills from Anil Cyclostyling Services which bear no name and signature. You have actually paid Rs. 3,051,95 whereas you have debited the amount of Rs. 3,294.20.

17. You have debited Rs. 4000/- of term fee account of 1976-77 on the Head of Unit Test Examination expenses of term fee account of 1977-78.

18. You have debited amount of Rs. 4,816.00 on the Head of Examination expenses of term fee account of 1977 -78 without supporting bill and/or receipts.

19. You have tampered the bills of maintenance of play ground of the term fee account of 1978-79. You have tampered the amount of bill Rs. 190.00 in to Rs. 290.00. Amount of the bill in figure and words differ. You have misappropriated one hundred rupee by tampering the bill.

20. You have debited three bills for the same supply of pay sheets 5 pads of 10 pages each. Bill amount of Rs. 786.00 debited into term fee account of 1978-79 includes amount of Rs. 130.00 Bill of the same supply bearing No. 350 of nil has debited in tuition fee account of 1978-79. A third bill for the same supply bearing No. 331 dated 30-11-78 has not been paid. You have obtained blank receipts for misappropriation of schools fund.

21. You have paid amount of Rs. 515.00 twice, in term fee account and tuition fee account of 1978-79 and you have paid amount of Rs. 85.00 excess, you have obtained three receipts against the bill amount of Rs. 515.00, two receipts of Rs. 400,00 and Rs. 200/- in term fee account and one receipt in tuition fee account.

22. You have paid Rs. 1,500/- advance payment to Mr. K.V. Kelker of M/s. Vidya Mudran Mandir and M/s. P.K. Agency at Panvel for the order placed on 12-9-77. The suppliers have given regular bills and receipts of payment of supply made on 7-10-77. You have either misappropriated amount of Rs. 1,500/- or you have neglected to recover advance payment from tuition fee account of 1977-78.

23. You have debited following bills in tuition fee account of 1978-79 which are not supported by bills and receipts from suppliers.



Date C.B. L.F Amount Vr. No.

7-4-98 6 76 150.00 9
11-4-78 8 101 20.00 12
17-4-78 14 59 125.00 23
15.00
26-4-78 22 52 105.00 35
26-4-78 22 76 601.50 38




24. You have debited bill of purchase of tube light. Remark on back of the alleged bill shows that it was presented by Shri Gautam Kondaji of Vikhroli to the High Schools. Thus you have misappropriated a bill of Rs. 40.00 on electrical charge dated 30-5-78.

25. You have debited amount of Rs. 4,000.00 and Rs. 2,000.00 on 28-6-78 and 8-8-78 respectively on the head of Bank of Maharashtra from S.B. a/c. No. 2704 of the High School. You have nowhere shown the purpose of transaction.

26. You have paid cash amount of Rs. 12,842.00 to M/s. Keer & Co. for purchase of furniture and equipments on 31-3-79. M/s. S. Keer & Co. denied the receipt of such payment.

27. You have debited amount of Rs. 4,000.00 and Rs 2,000.00 as cash payment for furniture and equipment on 14-7-79 in the tuition fee account 1979-80. Alleged cash payments are made to M/s. Keer & Co., M/s. Keer & Co. denies having cash payments. Receipts issued supporting these vouchers are receipts for cheque payments to M/s. Keer & Co. on 27-6-78 and 1-8-78 i.e. for previous year (1978-79).

28. You have purchased uniforms for peons on 21-8-79 and debited amount of Rs. 1.100.00 in tuition fee account for the year 1979-80. you have paid the amount in two installments of Rs. 500.00 and Rs. 600.00 on 7-9-79 and 8-11-79. These receipts do not indicate for supply of uniforms to peons. According to the supplier these payments are adjusted towards arrears of previous outstandings.

29. You have not credited loan amount of Rs. 7,937.20 (Rupees seven thousand nine hundred thirty seven and paise twenty only) in the High School account for the year 1977-78. Loan of Rs. 7,937.20 has granted by Mahalakshmi Shikshan Sanstha, Mumbai, to meet the expenses of the High School in the year 1977-78.

30. You have credited amount of loan Rs. 4,000.00 in High School account for year 1977-78 on 21-4-77. Loan-amount of Rs. 4,000.00 is given to High School by Mahalakshmi Shikshan Sanstha, Mumbai on 22-4-77. You have credited loan amount of Rs. 4,000.00 on day prior to the day actually you received the loan.

31. You have received the loan amount of Rs. 500.00 on 28-12-77 from Mahalakshmi Shikshan Sanstha. Mumbai. You have credit loan amount of Rs. 500.00 on 28-1-78 in books of account of High School for year 1977-78 i.e. you have credited loan amount after one month.

32. You have debited Rs. 74,500/- in books of High School account for the year 1978-79 towards repayment of loan to Mahalakshmi Shikshan Sanstha, Mumbai. In fact, these payment of Rs. 74,500/- has not been refunded to loan account of Mahalakshmi Shikshan Sanstha, Mumbai.

33. You have credited Rs. 1,37,979.20 as loan received from Mahalakshmi Shikshan Sanstha, Mumbai in the books of account of High School for the year 1978-79. No such loan has been given by Mahalakshmi Shikshan Sanstha, Mumbai to High School. The loan of Rs. 63,479.20 has been given by Mahalakshmi Shikshan Sanstha Mumbai to High School. These loan amount have not been credited in High School account for the year 1978-79.

34. You have credited the loan amount Rs 8,000/- in books of accounts of High School for the year 1979-80. Whereas Mahalakshmi Shikshan Sanstha, Mumbai has given loan amount of Rs. 16,556,60 to the High School for the year 1979-80.

35. You have debited amount of Rs. 200.00 on 19-9-79 in High School account for the year 1979-80 as re-payment of loan to Mahalakshmi Shikshan Sanstha, Mumbai. In fact no such loan amount is repaid to the Sanstha.

36. You are found guilty of misconduct of misbehaviour of a serious nature. Charges are levelled to you in this charge-sheet. Your detailed explanations are demanded against each of the charges.

37. You are directed to deposit your detailed explanations against each charges within ten days from the date of receipt of this charge-sheet to the Enquiry Committee.

38. Enquiry Committee duly constituted u/r No. 36 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 shall enquire into the charges and report the findings with recommendations.

39. If you will not deposit your explanation against each charges within stipulated period to the Enquiry Committee, the Enquiry Committee shall proceed to enquire into the charges that you have nothing to say in your defence to the charges and the Enquiry Committee shall proceed to prepare report on findings.

40. Enquiry Committee shall submit its Report on finding the charges, along with recommendations to the Mahalakshmi Shikshan Sanstha, Mumbai. Such Report of the Enquiry Committee shall be final and binding to all parties concerned.

41. This charge-sheet to Shri Jagannath Gajanan Madhav, Headmaster, Vidya Mandir High School, Tagorenager, Bombay-400 083, is prepared by members of Managing Committee of Mahalakshmi Shikshan Sanstha Mumbai (E 2528) and is approved and adopted at its meeting on 25th day of March, 1984. And this charge-sheet is handed over to Convener Enquiry Committee constituted u/r 36 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 to enquire into the charges and to report on findings with recommendations.

This on 25th day of March, 1984 at Bombay."

11. The said charge-sheet was served on the employee. However, the employee by communication dt. 19/4/84 wrote to the Chairman of the managing committee who was convener of the Enquiry Committee that the communication sent to him by them was unwanted, unfounded and illegal and that the framing of the charge-sheet was illegal having been prepared before actual constitution of the Enquiry Committee. He stated in his communication that though he had a mind to communicate the name and address of his nominee alongwith letter of consent of nominee but since the Enquiry Committee so constituted was not proper and the procedure was illegal, the enquiry so continued by the Enquiry Committee would be at their risk. Thereafter on 1-6-84 a notice was sent by the Enquiry Committee to the employee asking him to appear on 15th June, 1984 before the Enquiry Committee to testify and give evidence touching the charges preferred against him. It would be pertinent to note here that at the time the notice dated 1-6-84 was sent by the Enquiry Committee asking the employee to appear before it on 15th June, 1984 except service of charge-sheet on the employer nothing further was done. On 15th June, 1984, the date fixed, coram of the Enquiry Committee was not complete and for want of coram, the proceedings were adjourned to 19-6-84. It appears that though for want of coram, the proceedings of the Enquiry Committee were adjourned to 19-6-84, the management produced certain documents in support of the charges against the employee on 15-6-84. However, admittedly true copies of the documents so tendered by the management by way of evidence were not supplied by the management to the delinquent employee in terms of Clause (iii) of sub-rule (2) (a) of Rule 37. On 19-6-84 the employee was not present and the oral evidence of the witnesses produced by the management was recorded. However, as I have already observed from the record and proceedings of the Enquiry Committee made available to me by the learned Counsel for the petitioner for my perusal the statement of the witnesses produced by the management are not found. Be that as it may, indisputably the delinquent employee by the letter dt. 22-6-84 requested the convener of the Enquiry Committee to provide all documents, registers, account books and vouchers concerning him for his defence and also to provide him authenticated copies of the proceedings of the meetings of the Enquiry Committee held on 15th and 19th June. 1984 alongwith copies of statement of witnesses recorded by the Enquiry Committee on those dates. The employee also prayed that he may be communicated any suitable date between 26-6-84 and 28-6-84 so that he may attend and get all copies of the proceedings and statement of witnesses. He also prayed that he may be communicated the next date of the meeting of the Enquiry Committee to enable him to attend the Enquiry Committee for his defence. Despite that the specific prayer made by the delinquent employee immediately after the documents were produced by the management before the Enquiry Committee on 15-6-84 and witnesses were examined on 19-6-84, admittedly the Enquiry Committee neither made available the copies of the documents produced by the management in support of its case nor supplied copies of the statement of witnesses recorded by the Enquiry Committee to the delinquent employee. On 15-6-84, the management produced documents in support of its case for the first time but did not supply true copies of the said documents to the delinquent employee though they were impelled to do so under Clause (iii) of sub-rule (2)(a) of Rule 37. In terms of the procedure prescribed under clause (iii) of sub-rule (2)(a) of Rule 37, it was duty of the management to supply true copies of all such documents to the delinquent employee which it tendered by way of evidence before the Enquiry Committee. However, when the management failed to supply the same as required under the rules, the delinquent employee made specific request by his communication dated 22-6-84 which was hand delivered to the Chairman of the management who was convener of the Enquiry Committee despite such reasonable and fair prayer made by the delinquent employee, the copies of the said documents were not supplied to the delinquent employee. Not only that the delinquent employee also prayed for supply of copies of statement of witnesses recorded on 19-6-84 and copies of proceedings of 15-6-84 and 19-6-84 but still neither the said copies of statement of witnesses or the proceedings of 15-6-84 and 19-6-84 were supplied to the delinquent. The delinquent employee reiterated his request by another letter dt. 3-7-84 inviting the attention of the convener of the Enquiry Committee to his previous communication dt. 22-6-84. In the said communication dt. 3-7-84 the delinquent employee stated that despite his request, he has not been supplied requisite copies of the documents nor the statement of the witnesses referred nor the record has been made available for his perusal. He further requested him to intimate him the next date of hearing at least a week in advance since he was desirous of participating in the enquiry proceedings. It also appears that by the letter dt. 10th July 1984 which was hand delivered to the convener of the Enquiry Committee the delinquent employee prayed for supply of all relevant documents placed on record by the management and for cross examination of th

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e management witnesses. Despite the said request, admittedly neither the said documents which were produced by the management in support of its case were supplied to the delinquent employee nor copies of the statement of witnesses produced on behalf of management were supplied nor the delinquent was accorded opportunity to cross-examine the management witnesses. The requests made by the delinquent employee vide his communications dt. 22-6-84, 3-7-84 and 10th July, 1984 for supply of the copies of the documents produced by the management in support of its case, copies of statements of witnesses produced by the management and permission to the delinquent employee to cross-examine the witnesses produced by the management by no stretch of imagination could be termed unfair or unreasonable nor deserved to be ignored and overlooked. Even if the delinquent employee is deemed to have not exercised his right in nominating his nominee on the Enquiry Committee, he had every right to defend himself in the proceedings before Enquiry Committee and was entitled to copies of the documents produced by the management, copies of the statements of the witness of the management copies of the proceedings and cross-examination of management witnesses though delinquent employee challenged the very constitution of the Enquiry Committee and was of the view that the constitution of the Committee was unconstitutional being headed by the President of the management. The facts aforestated clearly show that the delinquent employee was not given fair and reasonable opportunity to defend himself in the Enquiry Committee and there was wholesome violation of the procedure prescribed under Rule 37. The employee had right to contest the charges levelled against him on the basis of the documentary and oral evidence led by the management, and was entitled to show that even on the basis of the documentary and oral evidence led by the management, the charges levelled against him were not proved. In the circumstances, therefore, it was incumbent firstly upon the management to supply the delinquent the copies of documents which were produced by it before the Enquiry Committee and when the management failed to supply true copies of all such documents to the delinquent employee as required under Clause (iii) sub-rule (2)(a) of Rule 37, the Enquiry Committee ought to have supplied the copies of the said documents to him when specific requests were made by the delinquent employee for supply of such documents and statement of witnesses produced by the management. The delinquent employee also prayed for cross examination of the witnesses and that opportunity too was not given and obviously, therefore, the delinquent employee was put to serious prejudice. Rule 37(2)(c) highlights that the Enquiry Committee shall see that every reasonable opportunity is extended to the delinquent employee for defence of his case but the facts aforenoted reveal otherwise. 12. It appears from the record on 8th July, 1984 the summary report was prepared by the Enquiry Committee and copy thereof was sent to the management and despatched to the employee which was received by him on 12th July, 1984. In response thereto, the employee sent a detailed reply on 25th July, 1984 and contested the correctness of the summary report and denied the charges parawise in details. The Enquiry Committee did not take the said reply into consideration objectively and first prepared supplementary summary report on 26-7-84 and then prepared the report with recommendations on 27-7-84. There was, thus wholesale violation of principles of natural justice to the peril of delinquent by the Enquiry Committee. The judgments cited by the learned Counsel for the petitioner on close scrutiny, I find do not benefit the petitioner in view of the facts already noted above. 13. The Tribunal has gone into the merits of the charges as well and found that the serious charge against the delinquent employee was misappropriation of funds and avoidance to complete audit report for years. In that regard in para 6 and 7, the Tribunal observed that due to want of audited reports it was difficult to state to what extent the delinquent employee was to be held responsible. The Tribunal also found that the Chartered Accountant submitted his audit report on 15-12-84 and the said report came into the hands of the management sometimes in the month of January, 85 and, therefore, the charges based on the books of accounts cannot stand. I have no reason to take a different view in that regard. The other charges have also not been held to be proved on merits by the Tribunal. 14. In my view, since the enquiry proceedings suffer seriously from violation of principles of natural justice and procedure contemplated under Rule 37 of Rules of 1981, the Tribunal did not and cannot be said to have committed any error in setting aside the notification dt. 31st July, 1984 removing the delinquent employee from service which was based on the enquiry report. 15. All in all the impugned order passed by the Tribunal does not call for any interference by this Court in extraordinary jurisdiction under Article 226 of the Constitution of India, since the enquiry proceedings against the delinquent employee are vitiated being in contravention of the procedure prescribed under Rule 37 and principles of natural justice. 16. Writ petition accordingly has no merit and is dismissed. Rule is discharged. No costs. 17. It may be observed that since during pendency of the writ petition the delinquent employee has already attained age of superannuation he would be only entitled to monetary benefits in terms of the order passed by the school Tribunal. 18. Mr. Parekh, the learned Counsel for the petitioner prays for stay of this order, however, for the reasons which I have already stated above, oral prayer for stay is rejected. Certified copy expedited. 19. Petition dismissed.
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