Bombay High Court
Sindhi Education Society, Gondia, Thr. ... vs Deputy Director Of Education, Nagpur ... on 26 October, 2023
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
35. WP 2108 of 2021.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2108/2021
Sindhi Education Society, Gondia, through its President Adv. Indrakumar
Hotchandani and another
...Versus...
Deputy Director of Education, Nagpur Division, Nagpur and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. P.N. Shende, Advocate for petitioners
Mr. I.J. Damle, AGP for respondent nos.1 and 2
Mr. I.N. Choudhari, Advocate for respondent no.3
CORAM : AVINASH G. GHAROTE, J.
DATE : 26/10/2023
1. Heard Mr. Shende, learned counsel for the petitioners. The petition questions the judgment dated 21/01/2021 passed by the learned School Tribunal, Nagpur, whereby the appeal filed by the respondent no.3 under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 (for short hereinafter, "MEPS Act, 1977") challenging his termination by the order dated 05/01/2018 has been set aside and the petitioners have been directed to pay back wages to the respondent no.3 on her reinstatement.
2. The learned School Tribunal, in its judgment impugned (para 21 onwards), records the breach of the
35. WP 2108 of 2021.odt 2 provisions of Section 36 (1) of the Maharashtra Employees of Private Schools (Conditions of Services) Rules, 1981 (for short hereinafter, "MEPS Rules, 1981"), inasmuch as there was no resolution by the Management to hold an enquiry. There was no authorization to the Chief Executive Officer to prepare and serve the statement of allegations; there was no document on record to show that the explanation submitted by the respondent was not satisfactory; there was no document to indicate that the President Mr. Indrakumar Hotchandani, who acted as a member of Enquiry Committee, was so authorized or nominated ; there was breach of Rule 36 (2) (a) (i); 36 (2)
(a) (iii); Rule 37 (1); 37 (2) (c); 37 (2) (d) (iii) and Rule 37 (2) (iii) as well as Rule 37 (6) of the MEPS Rules, 1981 on account of which the order of termination was quashed and set aside and reinstatement was directed with full back wages.
3. Mr. Shende, learned counsel for the petitioners, submits that a resolution was indeed passed by the Managing Committee of petitioners-Society on 21/06/2017 for constituting the Enquiry Committee in pursuance to the communication dated 31/05/2017 received from the Education Officer (pg.20), by which resolution Secretary of the Society was also empowered to constitute the Enquiry Committee and release statement of allegations/charge-sheet (pg.31). It is, however, an admitted position that these documents though find mention in the written statement of the petitioners (pg.115) as well as in earlier suspension order, the same was never produced before the learned School Tribunal.
35. WP 2108 of 2021.odt 3 It is also contended relying upon Kashiram Rajaram Kathane Vs. Bhartiya R.B. Damle Gram Sudhar Tatha Shikshan Prasar Society and others 1997 (3) Mh.L.J. 235 that since the enquiry was found to have been vitiated, it could have been directed to be commenced afresh from the point from which it stood vitiated. Reliance is also placed upon Saindranath s/o Jagannath Jawanjal Vs. Pratibha Shikshan Sanstha and another 2007 (3) Mh.L.J. 753 by the Full Bench of this Court which holds that the MEPS Act, 1977 and the Rules framed thereunder do not subscribe to the action of the Management leading to imposing major penalty without holding an enquiry and the Management cannot be allowed to justify their action for the first time before the Tribunal in case of no enquiry. He, therefore, contends that the matter needs to be remanded to the Enquiry Committee as indicated above.
4. Mr. Choudhari, learned counsel for the respondent no.3 justifies the impugned judgment and points out that the resolution, which is alleged to have been passed by the Management was never placed before the Tribunal at all and therefore, the petitioners now cannot be permitted to fall back on it in this petition. He also relies upon the averment made in the written statement of the petitioners (para 24/pg.118) which is to the effect that there was no majority decision of the Enquiry Committee to terminate the services of the respondent no.3 to contend that in absence of such a majority decision, the termination would be bad in law. Insofar as remand is concerned, reliance is placed by him on Bhagwanrao s/o
35. WP 2108 of 2021.odt 4 Vishwanath Vyawhare and another Vs. Sau. Sunita w/o Gopinath Palve and another 2008 (1) Mh.L.J. 417 (para 7, 9 and 10) to contend that considering the circumstances, remand cannot be ordered.
5. List the matter on 27/10/2023.
(AVINASH G. GHAROTE, J.) Wadkar Signed by: S.S. Wadkar (SSW) Designation: PS To Honourable Judge Date: 26/10/2023 17:22:36