Bombay High Court
Yavatmal Islamia Anglo Urdu vs Mujib Ahmed Abbas Ali on 16 October, 2009
Author: A.B.Chaudhari
Bench: A.B.Chaudhari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH ; NAGPUR.
WRIT PETITION NO. 4347/2002
PETITIONERS: 1. Yavatmal Islamia Anglo Urdu
Education Society, Yavatmal,
through it's Secretary/Manager,
R/o. Yavatmal, Distt. Yavatmal.
2. Anjuman Urdu High School,
ig Yavatmal, through its Headmaster
R/o. Yavatmal, Tq. Yavatmal, Distt.
Yavatmal.
VERSUS
RESPONDENTS: 1. Mujib Ahmed Abbas Ali, aged about
49 years, Occupation : Nil, R/o.
Islampura, Near Gausia Masjid,
Yavatmal, Tq. & Distt. Yavatmal
2. The Education Officer, Secondary,
Zilla Parishad, Yavatmal, Tq. & Distt.
Yavatmal.
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Shri P.B.Patil, Advocate, for Petitioners Shri M.R.Johrapurkar, Advocate, for Respondent no.1 Shri Shyam Ahirkar, AGP, for respondent No.2 ============================================= ::: Downloaded on - 09/06/2013 15:14:19 ::: 2 CORAM : A.B.CHAUDHARI. J Reserved for Judgment on 31/08/2009 Judgment pronounced on 16/10/2009 Judgment :
1. Aggrieved by the judgment and order dated 29-10-2002 passed by Presiding Officer, School Tribunal, Amravati Division, Amravati, in Appeal No. 11/1999, allowing the appeal preferred by Respondent No.1 against the termination oder dated 29.12.1998 and directing the petitioners to reinstate him as Naik with continuity of service and backwages, the petitioner has filed the present petition.
2. In support of the writ petition, Mr. P.B. Patil, learned counsel for the petitioner made the following submissions, so also filed written note of arguments.::: Downloaded on - 09/06/2013 15:14:19 ::: 3
(i) The School Tribunal committed an error in setting aside the termination order that was passed after holding regular departmental enquiry against respondent no.1/employee. The tribunal has found that the enquiry was not fair and proper, but the said finding is factually & legally incorrect.
(ii)The list of witnesses is to be supplied as per Rule 37(2)(i)(iii) to the Enquiry Committee and not to the delinquent employee. Even then the same was supplied to him on 28.10.1998 and in the absence of any prejudice being shown, the tribunal could not have held against the petitioner. On 27.10.1998 witness Shri Haq was examined as a first witness, but he was not cross examined by Respondent No.1 on that ::: Downloaded on - 09/06/2013 15:14:19 ::: 4 day. He later on expired on 6.11.1998. On 28.10.1998, three witnesses were examined and cross examined by Shri Pardakhe, the representative of the delinquent employee, while witness Sayeed Yaseen was cross examined by the delinquent employee himself and thus opportunity was provided to the delinquent. On 14.11.1998, two witnesses were examined and cross examined and Shri H.M.Baig was examined in presence of delinquent & his nominee, but he left the enquiry without cross examining the witness. On 14.11.1998, Management closed its side and fixed the case for delinquent's evidence on 17.11.1998. Since no date was fixed on earlier date i.e. 14.11.1998, information about the next date viz. 17.11.1998 was given by registered post A/D & telegram and thus the delinquent had ::: Downloaded on - 09/06/2013 15:14:19 ::: 5 knowledge about that date.
(iii)Though nominee of the delinquent employee was granted permission to attend the meeting on 4.12.1998, adjournment was sought by him and that is why the management closed the evidence of both sides and then summary of proceedings etc., and copies of statement of witnesses were sent on 5.12.1998 which were admittedly received by him.
(iv)The tribunal has found that the enquiry so held was not fair and proper and having found so, it ought to have followed the course indicated by the Full Bench Judgment of this Court in the case of Saindranath Jagannath Jawanjal vs. Pratibha Shikshan Sanstha & another (2007 (3) Mh.L.J. 753) and Kashiram Rajaram Kathane ::: Downloaded on - 09/06/2013 15:14:19 ::: 6 vs. Bhartiya R.B.Damle Gram Sudhar Tatha Shikshan Prasar Society and others (1997 (3) Mh.L.J. 235) decided by this Court. The Tribunal ought to have, therefore, exercised its power and directed the petitioner/management to prove the misconduct before the tribunal by examining the witness. The alternate submission made by Mr. Patil, therefore, is that this Court should, in the facts of the present case, direct the tribunal to hold an enquiry by permitting the management to examine the witnesses for proving the misconduct or the charges levelled against respondent no.1 which are serious in nature.
(v) The petitioner/ management is not in a position to make the payment of full backwages which may be in lacs and therefore, this Court should also consider the issue of modifying the award ::: Downloaded on - 09/06/2013 15:14:19 ::: 7 of backwages. The post which deliquent was holding stood abolished after his dismissal from service and hence no reinstatement is possible.
He relied on the following decisions.
(a) 2007 (3) Mh.L.J. 753; Saindranath Jagannath Jawanjal vs. Pratibha Shikshan Sanstha & another
(b) 1997 (3) Mh.L.J. 235; Kashiram Rajaram Kathane vs. Bhartiya R.B.Damle Gram Sudhar Tatha Shikshan Prasar Society and others.
3. Per contra, Mr. Johrapurkar, learned counsel for Respondent No. 1 vehemently opposed the writ petition and also filed written as well as additional written notes of arguments. According to Mr.Johrapurkar, learned counsel for respondent no.
1, the entire enquiry conducted by the management was with an ulterior motive and therefore, this is a case of victimization and with this point of view, appreciation will have to be made. He submitted ::: Downloaded on - 09/06/2013 15:14:19 ::: 8 that charge sheet was issued to respondent no. 1 on 14.09.1998 in respect of alleged incidents of the year 1995 i.e. when the Headmaster Shri Baig was in employment and had to go out of his service because of his immoral conduct. But he was again allowed to join the service by the management of the society.
He then argued that the tribunal has set aside the termination order, inter alia, on the ground that Shri A.P.Shukla was included in the Enquiry Committee when as a matter of fact he was not on the panel maintained by the Education Officer in respect of the State Awardee Teachers. The submissions were made before the Tribunal about the ineligibility of Shri Shukla and the tribunal accepted the same. The petitioner had an opportunity to show before the tribunal or even before this Court that the name of Shri A.P.Shukla was included in the panel maintained by the ::: Downloaded on - 09/06/2013 15:14:19 ::: 9 Education Officer and that he was in the Panel of the State Awardee Teachers. Though it is true that he was State Awardee Teacher, but he was not in the panel. There is certain sanctity attached to the person who is taken on the panel of State Awardee Teachers. The constitution of Enquiry Committee was thus wholly illegal.
4. The stand taken by the petitioner that the list of witnesses was not required to be supplied to the delinquent but was required to be supplied to the convener, clearly shows that there was a deliberate attempt to violate the principles of natural justice and to hide & seek. There was deliberate attempt to withhold the names of the witnesses from the delinquent with an oblique motive and that is why after examination of their star witness Shri Haq on 27.10.1998, the list of witnesses was supplied on ::: Downloaded on - 09/06/2013 15:14:19 ::: 10 28.10.1998. There is a repeated correspondence on record to show that the demand was made by the delinquent for supply of list of witnesses. When time was sought for cross examination of the witnesses on 28.10.98, the same was declined. Pointing out my attention from record page nos. 165 to 267 of the record, Mr.Johrapurkar argued that the list sent to the delinquent clearly reveals the state of affairs and the manner in which the enquiry was conducted.
The delinquent received telegram on 17.11.98 at about 1.35 hours and registered letter on 18.11.98.
Even then on 17.11.98 itself, four witnesses were examined and the management side was closed, which clearly shows the deliberate intention on the part of the petitioner management to make show of the enquiry. He then argued that the witnesses were being examined behind the back of the delinquent and the delinquent was prohibited from examining ::: Downloaded on - 09/06/2013 15:14:19 ::: 11 himself and the witnesses by closing his side on 30.11.1998. The nominee of respondent no.1 sought leave on 4.12.1998 to attend the enquiry, but there is a document on record to show that the same was rejected and he was asked to perform the work and on the other hand, application for adjournment on that ground was rejected and false claim was made that he was allowed to participate in the enquiry.
Inviting my attention to additional written notes of argument, Mr. Johrapurkar argued that there are several other grounds which show that the enquiry was clearly vitiated and in the wake of the above factual background, the enquiry having been made with an ulterior motive, the circumstances do not warrant exercise of power by the court to permit the petitioner-management to hold enquiry before the Court or tribunal by examining the witnesses and proving the misconduct as it would amount to ::: Downloaded on - 09/06/2013 15:14:19 ::: 12 putting premium over the illegal acts of the management. At any rate, in the W.S., no plea to prove misconduct before the tribunal was at all taken. In case of illegal termination with victimization, the relief of award of full back-wages and continuity of service can not be interfered with.
5. I have heard the learned counsel for the rival parties at length and I have gone through the entire record including the huge record containing the papers of inquiry and correspondence. At the outset, it would be appropriate to quote the reasons for which the tribunal has found the inquiry to be illegal and consequently it set aside the termination order. I quote paragraph Nos. 4 & 5 which read thus-
"4. ........ As tribunal is not empowered to touch the finding of inquiry Committee, it is not touching the said charges and finding of it by inquiry Committee. Tribunal is ::: Downloaded on - 09/06/2013 15:14:19 ::: 13 deciding whether inquiry is conducted as per Rules and sufficient opportunity was offered to appellant or not.
5....... Hence, it can safely be inferred that there was no notice to appellant for the proceedings dated 17//11/98 and on the very day four witnesses were examined.
Application of appellant dated 10/12/98 submitted to Convenor of Inquiry Committee shows that he had made grievance that witnesses were examined behind his back and he requested to grant permission for cross examination. The said application was not decided by the Inquiry Committee.................................................... ................ These are the few incidences from which Tribunal can come to the conclusion that inquiry was not conducted fairly by granting proper opportunity to appellant for defending his case.
The ;other allegations of appellant that his applications were not decided by Inquiry Committee, no firm opinion can be given because order upon them appears to have been passed upon it. In response to this contention, a stand has been taken by appellant that those orders were passed subsequently. Hence, in order to avoid that controversy, Tribunal has not considered such applications in its order.
It needs to be observed that though both the parties have supplied documents and details in respect of pleadings about the deficiencies or otherwise in the ::: Downloaded on - 09/06/2013 15:14:19 ::: 14 enquiry proceedings, the tribunal has not taken pains to address itself on all those factual aspects of the respective case of the parties. In my opinion, that is not the correct approach. It is the duty of the tribunal to refer to and address each and every pleading which is relevant & material and consider the submissions made by the parties, so also the evidence tendered before it and then address itself on those aspects. After all, School Tribunal is a first court or tribunal exercising the power of the first court or the trial court though the proceedings before it are termed as 'appeal'. This court has held that said term 'appeal' is misnomer. Coming to the reasons given by the tribunal in paragraph 5, I find that the reasons furnished by the tribunal are correct and tally with the records. I do not find that the tribunal has factually made any error in recording the reasons. But then tribunal has not ::: Downloaded on - 09/06/2013 15:14:19 ::: 15 further elaborated these reasons and also not recorded the additional reasons in the matter about which I will make a reference in my judgment. I then quote paragraph No. 6 from the judgment of the tribunal, which is as under;
"6. So far as inclusion of Shri A.P.Shukla in Inquiry Committee by respondents is not as per Rules. Because though he was a State Awardee Teacher but he was not on the panel of the same. This objection becomes more grave on the background that appellant has made various serious complaints including financial embezzlement against him. Therefor,e constitution of Inquiry Committee stands vitiated.
So far as the issue regarding inclusion of Shri A.P.Shukla is concerned, it appears to be true that the said ground was not raised in the memo of appeal. But then, it appears that the same was allowed to be raised during the course of hearing of the appeal and a finding has been recorded by the tribunal that Mr. Shukla was a State Awardee ::: Downloaded on - 09/06/2013 15:14:19 ::: 16 Teacher, but he was not on the panel maintained by the Education Officer. Even before me, in the present writ petition, nothing has been placed by the petitioner on record to show that at the relevant time Shri A.P.Shukla was on the panel of the Education Officer as State Awardee Teacher. It would be highly improper to remand the matter for the said purpose to find out whether he was on the panel or not, as in the present case vide affidavit dated 1.4.2003 filed by one Shriram Wamanrao Khope, Deputy Education Officer, Zilla Parishad, Yavatmal, at Annexure R-1, list of the State Awardee Teachers on the panel of the Education Officer has been filed and the name of Shri A.P.Shukla as Shri Ambikaprasad Shukla is at Sr.No. 6 in that list (Paper Book page 110). It is unfortunate that counsel for both the parties failed to mention about it during the course of hearing. There is no reason for me to ::: Downloaded on - 09/06/2013 15:14:19 ::: 17 reject the said affidavit of the Education Officer and therefore, in my opinion, the finding recorded by the tribunal in para 6 is clearly wrong and illegal and contrary to the record. I, therefore, set aside the findings recorded by the tribunal in para 6 of its judgment and order.
6. It is seen that the delinquent was given charge sheet after he was suspended on 14.09.1998 and thereafter, for the first time, the first meeting was held on 29.9.1998 and it is on that date the convenor of the meeting or the petitioner-
management were bound to supply the list of the witnesses to the delinquent before going ahead. But none bothered to do so. On 13.10.98 the delinquent issued a letter to furnish him the list of witnesses as he did not receive the same, but that was not done.
Surprisingly enough, on 27.10.98 one Mohd. Haq ::: Downloaded on - 09/06/2013 15:14:19 ::: 18 was examined and even on that day the list of witnesses was not furnished to the delinquent and even the petitioner states in its written note of argument that the said list was supplied to him on 28.10.98 i.e. after the evidence of Mr. Haq was recorded. The only explanation coming forward from the petitioner-management is that there was no requirement to supply the list to the delinquent. In the first place, having regard to the principles of natural justice, such a submission is misconceived and assuming it to be technically correct as per the rule 37(2)(i)(iii), the convenor was obliged to supply him the list of witnesses before proceeding to record any evidence. Supply of list of witnesses in advance is very important since the delinquent must know the names of witnesses or the nature of evidence that would be recorded against him and to plan his strategy to cross examine them and bring proper ::: Downloaded on - 09/06/2013 15:14:19 ::: 19 evidence on record. Failure to supply list of witnesses was certainly a serious breach on the part of the petitioner management as well as enquiry committee. Again on 28.10.98, on which date the list of witnesses was supplied, witnesses were examined by the Management. The Enquiry Committee had full knowledge that after repeated demands for supply of list of witnesses to it by the delinquent, the list was supplied on 28-10-1998.
Despite this surprisingly enough it examined witnesses on 28-10-1998 and discharged the witnesses without their cross examination. Record nowhere shows that Committee had offered the delinquent some time to cross-examine the witnesses particularly because list was supplied on the same day. To say that nothing prevented the delinquent to cross examine the witnesses on 28-10-1998 in the above factual background is ::: Downloaded on - 09/06/2013 15:14:19 ::: 20 absurd. Enquiry Committee acts as a domestic tribunal for deciding the fate of an employee. It is an independent body constituted by rules, and it cannot be expected to indulge in breaching the principles of natural justice repeatedly. To my mind, all this was done deliberately. Though it is not possible to record each and every thing from Page 165 to 217 to which my attention was invited by Mr. Johrapurkar, I must say that I have gone through the entire correspondence and I find that the state of affairs when the enquiry was going on clearly indicates that the attitude of the management as well as the Enquiry Committee was with clear hostility towards the delinquent-respondent no.1. The respondent no.1 was required to send the letters by registered post A/D having found that the Enquiry Committee was also hostile to him. He was not allowed to cross examine the witness Smt. Saba Nasreen on ::: Downloaded on - 09/06/2013 15:14:19 ::: 21 14.11.98. He was not given the necessary order-
sheet etc. when demanded. It is then pertinent to note that on 14.11.98 when the enquiry was fixed and was completed, the Committee did not fix the future date and allowed the parties to go without date and it appears that thereafter suddenly it fixed the next date as 17.11.98 and issued telegram and registered letter to the delinquent. He received the telegram at 1.35 hours on 17.11.98 and the letter on 18.11.98 and by that time on 17-11-1998 itself, four witnesses were examined and the management on that date closed its side without cross examination of all those witnesses. This is something unheard of and the only conclusion that can be drawn is that it was deliberate and view a view to victimize the employee. When on 18.11.98 he sought permission to cross examine them, his request was not even considered. As regards the hostility of the petitioner ::: Downloaded on - 09/06/2013 15:14:19 ::: 22 management and the Enquiry Committee, there are further salient features which can be pointed out.
On 30.11.98 when the enquiry was already fixed, Shri Pardakhe, nominee of the delinquent employee was required to attend meeting on 30.11.98 at Amravati as per permission granted by Headmaster.
Permission was granted to attend the meeting on 2.12.98 at 11 o'clock at Nagpur. Thus in this background, since Shri Pardakhe was required to attend the meetings at Armavati and Nagpur, time was sought by the delinquent till 12.12.98 for examining himself and his witnesses, but his application for adjournment was rejected on 4.12.98 and immediately on the next date i.e. on 5.12.98 the summery of proceedings and copies of statement were sent by the Committee. It thus clearly appears that the petitioner and the Enquiry Committee hushed up the inquiry and deliberately prevented ::: Downloaded on - 09/06/2013 15:14:19 ::: 23 the respondent no.1/delinquent from examining himself and his witnesses. Nothing would have happened had he been given sufficient time to do so, since there is a provision in the rule for extension of time to complete the inquiry beyond 120 days with the permission of the Deputy Director of Education.
But then it appears that the Enquiry Committee as well as the petitioner management were in a ugly haste to dismiss him from the service.
7. The counsel for both the parties have cited several decisions before me in respect of their respective contentions about permissibility of holding the inquiry before the tribunal. In the first place, I find that the petitioner management had never pleaded in the alternative and prayed for holding the inquiry before the tribunal in case the inquiry was ultimately found to be not fair and ::: Downloaded on - 09/06/2013 15:14:19 ::: 24 proper. That apart, in para 65, the Full Bench of this Court in 2007 (3) Mh.L.J. 753; Saindranath Jawanjal vs. Pratibha Shikshan Sanstha, has had to say thus;
"65. But this should not be understood as placing fetters on the powers of the Tribunal. It is always open to the Tribunal to exercise its powers on the peculiar facts and circumstances of each case as it deems just and necessary in the interest of justice. Take a case where the management is not in a position to hold enquiry because of the situation brought about by the employee himself making it impossible for the management to hold enquiry before taking punitive action against him, in such contingency, the School Tribunal is not powerless to permit the School management to lead evidence to prove the act of misconduct before it to support its action. This legal sanction in law is implicit in sub-rule (b) of Rule 27 of Order 41 of Civil Procedure Code which reads as, ".....for any other substantial cause". This clause gives wide discretion to the Tribunal, which, no doubt, is required to be exercised judiciously for the reasons to be recorded. But, exercise of such powers in every case; in a routine manner would take away the very object of the litigation meant to provide the employees security and stability of service ::: Downloaded on - 09/06/2013 15:14:19 ::: 25 to enable them to discharge their duties effectively and efficiently. Therefore,. such power is available for being exercised only in the extremely exceptional cases and in compelling circumstances and not in a routine manner in every case."
Having regard to the Full Bench Judgment of this Court in which Supreme Court judgments have been considered, I find that this being a case of victimization and the petitioner-management as well as Enquiry Committee having joined hands against the delinquent in the matter of conduct of departmental enquiry right from the beginning, no premium can be put over the action of the petitioner-
management and Enquiry Committee who threw the principles of natural justice in the air. It would be a travesty of justice, in these circumstances, to allow the petitioner Management to prove misconduct before the tribunal in such a extreme case. I, therefore, hold on the facts of the present case that ::: Downloaded on - 09/06/2013 15:14:19 ::: 26 this is not a fit case where the tribunal could be expected to have exercised its power to direct the petitioner-management to prove misconduct before it. Hence, I do not accept the alternate submission as well. As regards the question of award of back-
wages, I find that the following proposition of law is laid down by the Supreme Court in the case of J.K.Synthetics Ltd. vs. K.P.Agrawal and another;
(2007) 2 SCC 433, and in particular para 19 & 20 thereof read thus-
"19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non- compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, ::: Downloaded on - 09/06/2013 15:14:19 ::: 27 but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in a wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if ::: Downloaded on - 09/06/2013 15:14:19 ::: 28 reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.
20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles ::: Downloaded on - 09/06/2013 15:14:19 ::: 29 relating to back wages etc., will be the same as those applied in the cases of an illegal termination".
For these reasons, it is not possible to interfere with the award of back-wages. No material has been placed on record before me about the alleged bad financial position of the management. Similar is the case with the abolition of the post, since abolition of the post took place after termination of the respondent/delinquent employee and it is of no relevance. As regards the order of the tribunal granting continuity of service, I find that in the light of the decisions of the Supreme Court in the cases of (2003) 2 SCC 212; A.P.SRTC and another vs. S. Narsagoud, and (2005) 6 SCC 36; A.P.State Road Transport Corporation & ohters vs. Abdul Kareem, the monetary benefits do not become automatically payable by grant of continuity of service, but there has to be specific order. It is ::: Downloaded on - 09/06/2013 15:14:19 ::: 30 necessary to apply the said law and accordingly I make modification in the order of the tribunal.
8. In the result I make the following order.
The Judgment and order of the School
Tribunal dated 29-10-2002 is confirmed. The writ
petition is dismissed with costs of Rs.10,000/-
payable to the respondent No.1 within eight weeks from the date of this order. It is clarified that the order made by the tribunal about the continuity of service would mean continuity of service with all monetary benefits arising therefrom.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 15:14:19 :::