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Judgment
Heard.
Rule. Rule made returnable forthwith. The writ petition is heard finally.
By the present writ petition, the petitioners, Management and Headmaster of the school run by the said Management, have challenged judgment
and order dated 10/01/2019 passed by the School Tribunal, Nagpur, whereby the Tribunal has allowed the appeal filed by the respondent No.1 and
upon setting aside order of termination of service dated 18/04/2007, directed that the respondent No.1 shall be reinstated with continuity of service and
full back wages.
The facts in brief leading up to filing of the present writ petition are that the respondent No.1 was appointed as an assistant teacher on 24/06/1995
in petitioner No.2ÂSchool by the petitioner No.1ÂManagement. The petitioner No.1ÂManagement is a society/trust wherein the office bearers are all
family members. On 15/10/1997, the respondent No.1 was promoted to the post of headmistress in the petitioner No.2ÂSchool and the said
appointment was duly approved by the respondent No.2Â Education Officer. On 21/03/2002, the Education Officer issued a show cause notice to one
Prashant Dhawad working as clerk in the petitioner No.2ÂSchool, on complaints submitted by the teaching and nonÂteaching staff of the said school,
wherein grievance was made that the said Prashant Dhawad never reported for duty and that he used to harass the staff, apart from the fact that he
was actually running a beer bar. The said Prashant Dhawad, although working as clerk in the petitioner No.2ÂSchool, was also a member of the
petitioner No.1ÂManagement, as he was the brother of the secretary as well as the president of the petitioner No.1Â Management (society). In this
backdrop, on 01/08/2006, a show cause notice was issued to the respondent No.1 by the president of the petitioner No.1ÂManagement levelling
various allegations of disobedience, negligence, misconduct and financial irregularities. It was the case of the respondent No.1 that although her record
was excellent from the first day of her appointment in 1995 till the said show cause notice was issued on 01/08/2006, the said action was taken by the
president of the petitioner No.1ÂManagement for the reason that the members of the petitioner No.1ÂManagement being family members, were
under the impression that action against one of them i.e. the said Prashant Dhawad had been taken by the Education Department at the behest of the
respondent No.1.
The respondent No.1 filed her detailed reply to the show cause notice and in the said reply dated 19/08/2006, she denied all the allegations made
against her as being false and frivolous. On 23/08/2006, statement of allegations was issued to the respondent No.1 under the signature of the said
Prashant Dhawad showing him as Chief Executive Officer of an enquiry committee. On 01/09/2006, the respondent No.1 submitted her reply to the
said statement of allegations refuting them and raising objection to the issuance of the statement of allegations, as being in violation of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules, 1981 framed thereunder (hereinafter referred to as
“MEPS Act and Rulesâ€). On 11/09/2006, a letter was issued to the respondent No.1, on this occasion under the signature of Anil Dhawad as
Chief Executive Officer of the enquiry committee stating that the president of the petitioner No.1ÂManagement, Ushatai Utane (sister of the said Anil
Dhawad) and one Madhukarrao Dhandare were appointed as members of the enquiry committee under the MEPS Rules and that the respondent
No.1 was required to submit name of her nominee to be a member of the enquiry committee within a period of seven days. On 18/09/2006, the
respondent No.1 submitted her reply to the said letter and objected to the constitution of the enquiry committee as being illegal and in violation of the
MEPS Rules and thereafter on 25/09/2006, she submitted the name of her representative Prashant Karpe as nominee on the enquiry committee with
his consent letter.
On 12/10/2006, the respondent No.1 received a chargeÂsheet under the signature of the said Anil Dhawad as Chief Executive Officer of the
enquiry committee, wherein as many as eleven charges were levelled against the respondent No.1. Thereafter, the proceedings of the enquiry
committee were undertaken and meetings were held. The respondent No.1 and her nominee on the enquiry committee raised objections from time to
time regarding the procedure being violative of the requirements of the MEPS Act and Rules. Despite such objections raised by the respondent No.1,
the enquiry committee proceeded with its meetings and on 16/04/2007 the enquiry was closed and reports were submitted. One report was submitted
by two members i.e. the convener of the enquiry committee (president of the petitioner No.1ÂManagement) and the State Awardee Teacher,
wherein it was found that all the eleven charges against the respondent No.1 were proved. A second enquiry report of the same day was submitted by
the third member of the enquiry committee i.e. nominee of the respondent No.1, concluding that none of the eleven charges could be proved against
the respondent No.1. While two members recommended that service of the respondent No.1 be terminated, the third member recommended that
compensation of Rs.50,000/Â ought to be paid to the respondent No.1 for the harassment suffered by her during the process of enquiry based on false
and frivolous charges.
On conclusion of the said enquiry and its findings given by the members, on 18/04/2007, the petitioner No.1 Management terminated the services of
the respondent No.1. Aggrieved by the same, the respondent No.1 filed appeal before the School Tribunal, Nagpur under section 9 of the MEPS Act.
In this appeal the respondent No.1 raised grounds of challenge to the effect that the entire proceedings initiated against her from the stage of issuance
of show cause notice to termination of her services, were vitiated by bias and flagrant violation of the provisions of the MEPS Act and the Rules and
the principles of natural justice. It was also pleaded in the appeal on behalf of the respondent No.1 that each and every charge levelled against her
was concocted, false and frivolous due to the office bearers of the petitioner No.1ÂManagement, being members of the same family, holding a grudge
against the respondent No.1.
By the impugned judgment and order dated 10/01/2019, the Tribunal allowed the appeal of the respondent No.1 and upon setting aside the order of
termination of service dated 18/04/2007, directed the petitioners to reinstate the respondent No.1 along with continuity of service and back wages. The
petitioners have filed the instant petition challenging the said judgment and order of the School Tribunal. In this writ petition, the respondent No.1
appeared on caveat through counsel and the learned AGP appeared on behalf of the respondent No.2 Education Officer. Since the respondent No.3
was a formal party, there was no necessity to issue notice to it. Accordingly, the writ petition was heard finally at the admission stage itself.
Mr. B.H.Shambharkar, learned counsel appearing for the petitioners, submitted that the School Tribunal was not justified in rendering findings
against the petitioners to the effect that the entire enquiry proceedings stood vitiated. It was submitted that the findings rendered by the School
Tribunal regarding defective constitution of the enquiry committee and illegal manner of issuance of show cause notice and statement of allegations,
were unsustainable. It was further submitted that even if the School Tribunal found that there had been irregularities in constitution of the enquiry
committee or that there had been violation of requirements of the MEPS Rules in initiation of the enquiry and that there had been violation of principles
of natural justice, the School Tribunal ought to have granted an opportunity to the petitioners to hold a de novo enquiry against the respondent No.1. It
was alternatively submitted that the School Tribunal ought to have granted an opportunity to the petitioners to place material before the Tribunal for
proving the charges levelled against the respondent No.1. It was submitted that the School Tribunal committed a grave error in not doing so, thereby
causing grave prejudice to the petitioners. The learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in the case
of ChairmanÂCumÂManaging Director, Coal India Limited and others v. Ananta Saha and others, reported in (2011) 5 SCC 14,2 judgment of Full
Bench of this Court in the case of Saindranath s/o Jagannath Jawanjal v. Pratibha Shikshan Sanstha and another, reported in 2007 (3) Mh.L.J. 753
and the judgments of this Court in the case of Thapar Education Society and another v. Shyam Maroti Bhasarkar and others, reported in 1997 (3)
Mh.L.J. 709 and Shishu Vikas Education Society and another v. Prabhakar Gulabrao Alone and others, reported in 2017 (2) Mh.L.J. 656.
On the other hand, Mr. A.D. Mohgaonkar, learned counsel appearing for the respondent No.1, submitted that the facts of the present case were
such that not only was their flagrant violation of the requirements of the MEPS Act and the Rules as also the principles of natural justice while
conducting enquiry against the respondent No.1, but the very genesis of the action taken by the petitioners was vitiated by bias, highhandedness and
malice on the part of the petitioner No.1ÂManagement, thereby showing that the request for de novo enquiry made on behalf of the petitioners or for
opportunity to place material before the Tribunal while seeking remand of the matter, was not justified and that in the facts of the present case, the
writ petition deserved to be dismissed. It was emphasized by the learned counsel that in such cases where there was sufficient material on record to
indicate that the management had proceeded in a most malicious manner against the respondent No.1 employee, in order to remove her by hook or
crook, there was no question of giving an opportunity to such a management to conduct de novo enquiry, so as to continue the harassment meted out
to the employee. It was submitted that the Tribunal had correctly passed the impugned judgment and order, in the interest of justice and that no
interference was warranted by exercise of writ jurisdiction. The learned counsel for the respondent No.1 also relied upon the aforesaid Full Bench
judgment of this Court in the case of Saindranath s/o Jagannath Jawanjal v. Pratibha Shikshan Sanstha and another (supra) apart from relying upon
judgments of this Court in the case of Bhagwanrao s/o Vishwanath Vyawhare and another v. Sau. Sunita w/o Gopinath Palve and another, reported in
2008 (1) Mh.L.J. 417 and Gramin Vikas Sanstha and another v. Presiding Officer, School Tribunal, Chandrapur and others (judgment and order dated
09/06/2010 passed in Writ Petition No.2187 of 2005).
Heard learned counsel for the parties and perused the material placed on record. A perusal of the same and the nature of contentions raised on
behalf of the rival parties shows that it needs to be examined whether the Tribunal was justified in holding that enquiry conducted against the
respondent No.1 stood completely vitiated and if so, whether the petitioners were justified in claiming their right to hold a de novo enquiry against the
respondent No.1.
The material on record shows that after the respondent No.1 was appointed as assistant teacher on 24/06/1995, she was promoted to the post of
headmistress by the petitioner No.1ÂManagement on 15/10/1997 and that the said appointment was approved by the respondent No.2ÂEducation
Officer. The material on record also shows that from 24/06/1995 i.e. the date of initial appointment of the respondent No.1 till 01/08/2006, the service
record of the respondent No.1 was excellent. It was only on 01/08/2006 that for the first time show cause notice was issued to the respondent No.1
levelling various charges against her. This sudden development indicates that the petitioner No.1ÂManagement for the first time realized that the
respondent No.1 had committed serious acts of disobedience and even financial defalcation. It is relevant that there had been initiation of some action
by the respondent No.2ÂEducation Officer against the said Prashant Dhawad, working as clerk in the petitioner No.2ÂSchool, prior to this sudden
issuance of show cause notice to the respondent No.1 by the petitioner No.1Â Management. The teaching and nonÂteaching staff of the petitioner
No.2ÂSchool had sent complaints to the respondent No.2ÂEducation Officer with regard to the conduct of the said Prashant Dhawad and the fact
that he was taking salary of the post of clerk while he was not attending duties and further he was actually running a beer bar.
At this stage, it becomes relevant to note that although the said Prashant Dhawad was shown to be working as a clerk in the petitioner No.2Â‐
School, he also happened to be a member/trustee of the petitioner No.1ÂManagement (Society/ Trust). The said Prashant Dhawad is the brother of
Anil Dhawad, who is secretary of the petitioner No.1ÂManagement/Society as also the brother of the president of the petitioner No.1Â Management.
Thus, Ushatai Utane, president of the petitioner No.1ÂManagement is the sister of Anil Dhawad, who is secretary of the Management and she is also
the sister of the said Prashant Dhawad, who is a member of the said Management/Society, who is also shown to be working as clerk in the petitioner
No.2ÂSchool. These facts are not denied by the petitioners. This shows that the petitioner No.1ÂManagement consists of members of one and the
same family and this fact has a vital bearing on the allegations of bias and malice made by the respondent No.1.
As noted above, despite excellent service record from 1995 to 2006, wherein the respondent No.1 was also promoted to the post of headmistress,
suddenly the petitioner No.1Â Management found that the respondent No.1 had committed serious misconduct, including financial irregularities. It is
also significant that the statement of allegations dated 26/08/2006 was issued to the respondent No.1 under the signature of the said Prashant Dhawad
working as clerk in the same school, by showing him as the Chief Executive Officer of the enquiry committee to enquire into the allegations levelled
against the respondent No.1. In other words, a clerk working in the petitioner No.2ÂSchool was shown by the petitioner No.1ÂManagement as Chief
Executive Officer of enquiry committee, which proposed to enquire into allegations levelled against the headmistress of the very same school. This
was obviously because the petitioner No.1Â Management was nothing but a family show and business and it was decided that the respondent No.1
was to be removed from the said post.
It is further significant that thereafter on 11/09/2006 a communication was sent to the respondent No.1, this time by showing Anil Dhawad
(Secretary of the petitioner No.1Â Management) as Chief Executive Officer of the enquiry committee, calling upon the respondent No.1 to submit
name of her nominee on the enquiry committee. By the said communication, it was also stated that the president of the petitioner No.1ÂManagement
would be the convener of the enquiry committee and that a State Awardee Teacher already stood appointed as member of the enquiry committee.
Thereafter the said Anil Dhawad, now the Chief Executive Officer of the enquiry committee, called upon the nominee of the respondent No.1 to the
enquiry committee, to submit consent letter of his employer for becoming member of the enquiry committee, which is nowhere required under the
MEPS Act or Rules. Thus, from the very initial stages, the Chief Executive Officer of the enquiry committee appeared to have acted in a biased
manner not only against the respondent No.1, but also against her nominee on the enquiry committee.
The material on record indicates that at every stage of the proceedings of the enquiry committee, the objections raised by respondent No.1 and
even her nominee, who was member of the enquiry committee, were ignored. The manner in which the proceedings were conducted gave an
indication that the petitioner No.1ÂManagement, which was constituted by members of the same family, were determined to conclude the enquiry
against the respondent No.1 and to terminate her services. Instances of violations of principles of natural justice are evident from the material on
record, which shows that the respondent No.1 was not given time to appear before the enquiry committee even when she was unwell and her father
had expired. The proceedings of the enquiry committee ultimately concluded on 16/04/2007 when the convener (president of the petitioner No.1Â‐
Management) and the State Awardee Teacher on the one hand submitted report holding the respondent No.1 guilty of all the eleven charges and
recommending termination of her service, while on the other hand, the nominee of the respondent No.1 submitted a separate report on the same day
absolving respondent No.1 of all the eleven charges and recommending payment of compensation by the petitioner No.1ÂManagement to the
respondent No.1. In this backdrop, on 18/04/2007, the services of the respondent No.1 stood terminated.
All these facts were taken into consideration by the School Tribunal while holding that the enquiry proceedings stood vitiated. It was also found
that the constitution of the enquiry committee was defective, because it was in violation of Rule 36(2) (b)(iii) as the third member on the enquiry
committee ought to have been from the panel of the headmasters on whom State/National Award had been conferred while in the present case, the
member so chosen was only a State Awardee Teacher. Since the respondent was a headmistress against whom enquiry committee was constituted,
such third member ought to have been a headmaster on whom the State/National Award was conferred. The School Tribunal also found that the
convener of the enquiry committee in the present case was president of the petitioner No.1ÂManagement while the Chief Executive Officer of the
enquiry committee was her own brother Anil Dhawad i.e. Secretary of the petitioner No.1ÂManagement and additionally the same person was a key
witness in the said enquiry against the respondent No.1. The School Tribunal found that the proceedings in the present case were initiated against the
respondent No.1 due to grudge held by the petitioner No.1ÂManagement, which consisted of members of the same family and that such proceedings
were hit by the vice of bias and malice. The material on record justifies the said findings rendered by the School Tribunal and this Court agrees with
the findings to the effect that not only were the principles of natural justice and requirements of the MEPS Act and Rules violated in the present case,
but also that the entire charges levelled against the respondent No.1 and the proceedings initiated against her were malicious and hit by the vice of
bias. Thus, no error was demonstrated by the petitioners in the findings rendered by the School Tribunal.
In this backdrop, the aforesaid question needs to be addressed as to whether in the facts and circumstances of the present case, the petitioner
No.1ÂManagement can be permitted to hold a de novo enquiry or in the alternative can it be permitted to place material before the School Tribunal to
prove the charges, by remanding the present case to the School Tribunal.
The learned counsel appearing for the rival parties have both relied upon Full Bench judgment of this Court in the case of Saindranath s/o
Jagannath Jawanjal v. Pratibha Shikshan Sanstha and another (supra). The Full Bench of this Court in the said case was required to resolve
conflicting opinions as regards the power of the School Tribunal under the provisions of the MEPS Act and the Rules to permit Management to place
on record material and evidence to prove misconduct and charges levelled against the employee. In the said judgment, it was held by the Full Bench of
this Court that the School Tribunal would have power to take additional evidence on record only in the contingency that the Management desires to
supplement its evidence already on record, but it was further categorically held that such a course could be adopted by the School Tribunal in
extremely exceptional and compelling contingencies. It was also observed in the said judgment that the Management is expected to make such a
request for placing additional material/evidence before the School Tribunal as soon as there is challenge raised to the action of the Management. In
the present case, the petitioner No.1ÂManagement never made any request before the Tribunal to place any material or evidence against the
respondent No.1, leave alone making such a request as soon as the respondent No.1 had raised challenge to the action of the petitioner No.1Â‐
Management by filing appeal before the School Tribunal. Such a request was made for the first time on behalf of the petitioner No.1Â Management
before this Court. Apart from this, the petitioner No.1ÂManagement completely failed to demonstrate how the present case could be said to be
compelling and extremely exceptional case for permission to be granted to the petitioner No.1ÂManagement to lead evidence or place material before
the School Tribunal by remanding the matter. Hence, the reliance placed by the learned counsel for the petitioners on the aforesaid Full Bench
judgment of this Court is misplaced and no case is made out for remand of the matter to permit the petitioners to place material or evidence before the
Tribunal against the respondent No.1.
This brings us to the next limb of argument raised on behalf of the petitioners that they should be permitted to hold a de novo enquiry against the
respondent No.1. It was contended that when the School Tribunal had come to the conclusion that there had been irregularities in the constitution of
the enquiry committee and that there had been violation of principles of natural justice, an opportunity ought to have been granted to the petitioner
No.1ÂManagement to hold a fresh enquiry, particularly because the charges levelled against the respondent No.1 were serious in nature. It was
submitted that the enquiry could be directed to be started afresh from the stage at which the School Tribunal had found that defects had arisen or that
there had been violation of principles of natural justice. It was submitted that the petitioner No.1ÂManagement had a right to hold such a fresh enquiry
in order to prove serious charges levelled against the respondent No.1.
In order to examine the said submission made on behalf of the petitioners, it would be necessary to analyze whether in every case where violation
of principles of natural justice and fundamental defects in the enquiry are found, the Management/ employer is to be permitted to hold a fresh enquiry.
In this regard, the learned counsel appearing for the respondent No.1 has correctly relied upon the judgment of this Court in the case of Bhagwanrao
s/o Vishwanath Vyawhare and another v. Sau. Sunita w/o Gopinath Palve and another (supra). In the said case also a similar question had arisen,
because the Management was insisting on its right to hold a de novo enquiry while the employee contended that the Management was hell bent upon
removing her by hook or crook and that the Court ought not to come to the assistance of such a Management. In the said judgment, this Court took
into consideration the law pertaining to the requirement of holding a de novo enquiry and found that in every case the Management could not be
permitted to hold a de novo enquiry and that on an appreciation of the facts and circumstances of an individual case, if it was found that the
Management had acted in a malicious manner, there was no need to permit a de novo enquiry, particularly when the employee was sought to be
removed by hook or by crook.
The facts of the present case, as noted above, clearly indicate that the petitioner No.1ÂManagement acted in a most malicious and biased manner
from the very beginning against the respondent No.1 and that it was hellbent upon removing the respondent No.1 from the post of headmistress by
hook or by crook. Once such a conclusion is reached, it would not be justified to permit the petitioner No.1ÂManagement to hold a de novo enquiry,
thereby not only prolonging the harassment of the respondent No.1, but giving a premium to such malicious and biased actions of the petitioner No.1Â‐
Management. Therefore, it cannot lie in the mouth of the petitioner No.1ÂManagement that permission for holding de novo enquiry was required to be
given in the present case.
Since it was submitted on behalf of the petitioners that the charges levelled against the respondent No.1 were of serious nature, to satisfy the
conscience of this Court, the petitioners were called upon to show from the material on record as to the basis of suddenly raising such charges against
the respondent No.1 in the year 2006, when her service record was found to be excellent from the year 1995 to 2006. But, the learned counsel for the
petitioners could not demonstrate anything significant in that regard. Some of the charges levelled against the respondent No.1 were absolutely vague
and charges pertaining to alleged financial misappropriation were not at all supported by any complaints from either students or their guardians. In fact,
the entire approach of the petitioner No.1ÂManagement appears to have been of levelling charges concerning serious misconduct, only with a view to
somehow get rid of the respondent No.1. In this context, the learned counsel appearing for the respondent No.1 was justified in relying upon the
judgment and order of this Court in the case of Gramin Vikas Sanstha and another v Presiding Officer, School Tribunal, Chandrapur and others
(supra), wherein it was held in similar circumstances, that only allegations by the Management appeared to be of grave nature and in the absence of
any material to support the same, there was no justification in permitting the Management to hold a de novo enquiry. In fact, in the said judgment,
reliance was placed on the earlier judgment of this Court in the case of Bhagwanrao s/o Vishwanath Vyawhare and another v. Sau. Sunita w/o
Gopinath Palve and another (supra). Thus, no case for permission to hold de novo enquiry is made out by the petitioners in the present case.
As regards the judgments relied upon by the learned counsel for the petitioners, the judgment of the Hon'ble Supreme Court in the case of
ChairmanÂCumÂManaging Director, Coal India Limited and others v. Ananta Saha and others (supra) would not be of assistance to the petitioners'
case as in this case, it is found that the petitioner No.1ÂManagement has acted in a malicious manner. The judgment in the case of Thapar Education
Society and another v. Shyam Maroti Bhasarkar and others, (supra) is also of no assistance to the petitioners because, the facts of the present case
are materially different and the biased approach of the petitioner No.1ÂManagement is fully made out. Similarly, reliance on the judgment of this
Court in the case of Shishu Vikas Education Society and another v. Prabhakar Gulabrao Alone and others (supra) on behalf of the petitioners is
misplaced because, in that case it was found by this Court that the School Tribunal had failed to record a finding that the enquiry was vitiated on
account of violation of any mandatory provision or that the enquiry committee was not properly constituted or further that there had been any violation
of principles of natural justice. In the present case, as noted above, there was flagrant violation not only of the principles of natural justice, but the
requirements of the MEPS Act and Rules. Thus, the said judgments relied upon by the learned counsel for the petitioners, are not of any assistance to
demonstrate any error in the impugned order passed by the School Tribunal.
In view of the above, this Court finds that there is no merit in the present writ petition and accordingly, it stands dismissed. Rule stands discharged.
No costs.