Bombay High Court
Ganpati Son Of Kondbaji Sant vs Shri Sant Gulab Baba Shikshan Sanstha ... on 2 December, 1999
Equivalent citations: 2000(4)BOMCR196, 2000(1)MHLJ658
Author: D.D. Sinha
Bench: D.D. Sinha
ORDER D.D. Sinha, J.
1. Heard Shri Deshpande, learned Counsel for the petitioner, Shri Lambat, learned Counsel for the respondent No. 1, and Shri Dhote, learned Assistant Government Pleader for the respondent Nos. 2 and 3.
2. The writ petition is directed against the judgment and order dated 20-2-1989 passed by the Presiding Officer, School Tribunal, Nagpur in Appeal No. STN/35 of 1988 presented by the present petitioner against the order of termination, which was dismissed. Shri Deshpande, learned Counsel for the petitioner, submitted that the petitioner was serving in the School run by the respondent No. 1 as Assistant Teacher. The petitioner being the senior-most qualified and eligible Teacher, was promoted to the post of Head Master on 1-7-1982. It is submitted that from 1970 till 1986, co-education was imparted in the school run by the respondent No. 1 Management, i.e. Ashok Vidyalaya, Umrer. The respondent No. 1 Management took a decision to bifurcate the school into two, i.e. boys' school and girls' school. The bifurcation of the school came to be effected from the academic session 1986-87. It is further contended that the respondent No. 1 Management mala fidely transferred the petitioner from boys' school to the newly created girls' school in the capacity of Head Master. It is submitted by the learned Counsel that since the girls' school was having strength of less than five hundred pupils, transfer of petitioner amounts to reducing the status of petitioner since pay scale de-
pends upon strength of students and, therefore, petitioner approached this Court by filing Writ Petition No. 1527/86. It is contended by the learned Counsel that on 11-12-1986 this Court disposed of the writ petition and transfer order was cancelled and this Court directed the Management to repost the petitioner as Head Master in the boy's school. It is further contended that on 18-8-1987 statement of allegations was served on the petitioner by the Chief Executive Officer of the Management and his explanation was sought. The enquiry was proceeded with, which ultimately culminated in issuance of order of termination dated 29-2-1988 by the Management. Being aggrieved by the order of termination, the petitioner filed above referred appeal before the School Tribunal and the Presiding Officer, School Tribunal vide impugned judgment and order dated 20-2-1989 dismissed the same. Hence, the present petition.
3. Shri Deshpande submitted that enquiry conducted by the respondent Management is violative of Rule 36(1) and (2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. It is contended that at the relevant time, the petitioner being the Head of the School, as per sub-rule (1) of Rule 36, it is the President alone, who was legally entitled to issue statement of allegations to the petitioner for the purpose of seeking his explanation. It is further contended that in the instant case, since statement of allegations was issued by the Chief Executive Officer of the management, the said action of the management is violative of sub-rule (1) of Rule 36 of the Rules of 1981.
4. Another contention raised by the learned Counsel for the petitioner is that as the petitioner was the Head Master at the relevant time, it was obligatory on the part of the respondent No. 1 to constitute Enquiry Committee as per sub-rule 2(b) of Rule 36 and out of three members contemplated by the said provisions, one member of the Enquiry Committee ought to have been the President himself. However, according to the learned Counsel, the President was not the member of the Enquiry Committee and, therefore, Enquiry Committee was not properly constituted, which has resulted in vitiating the proceedings conducted by the Enquiry Committee against the petitioner. The learned Counsel, therefore, contended that the Presiding Officer, School Tribunal was not justified in dismissing the appeal of the petitioner and order of School Tribunal is, therefore, not sustainable in law and order of termination is also bad in law.
5. Shri Lambat, learned Counsel for the respondent No. 1, contended that at the relevant time, petitioner was not the Head Master of the School, but was serving as an Assistant Teacher. It is further contended that since petitioner was serving as an Assistant Teacher, procedure adopted by the Management cannot be said to be violative of Rule 36 of the Rules of 1981 and, therefore, the impugned order passed by the Presiding Officer, School Tribunal is just and proper and same is also sustainable in law.
6. I have considered the contentions raised by the learned Counsel for the parties. The respondent No. 1 Management has failed to produce a single document before this Court for the purpose of demonstrating that the petitioner at the relevant time was not the Head Master of the School. The return filed by the respondent No. 1 Management in this Court is totally vague and cryptic wherein there is no specific denial to the specific allegations raised by the petitioner in the petition. It is really unfortunate that for the lapse of the respondent No. 1 Management, proper adjudication in respect of true picture of facts cannot be done. In the present case, there is a total failure on the part of the Management in placing proper material before this Court in order to consider as to whether the petitioner was serving as a Head Master at the relevant time or not. On the other hand, averment is in the writ petition are specific and same are, to some extent, supported by the earlier order passed by this Court in Writ Petition No. 1527/86. In the circumstances, the following undisputed facts emerge :
i) at the relevant Lime, the petitioner was serving as a Head Master of the School run by the respondent No. 1 Management,
(ii) Statement of allegations was issued by the Chief Executive Officer by which explanation was sought from the petitioner in regard to the allegations,
(iii) the President was not the member of the Enquiry Committee constituted in view of sub-rule (2) of Rule 36 of the Rules of 1981.
7. It will be proper at this stage to consider relevant rules in view of above facts. Sub-rule (1) of Rule 36 in no uncertain terms contemplate that in case of Head, it is the President alone, who is legally competent to issue statement of allegations for the purpose of seeking explanation. In the instant case, as stated above, Chief Executive Officer has issued the statement of allegations to the petitioner and, therefore, action of the Management in my opinion is violative of provisions of sub-rule (1) of Rule 36 of the Rules of 1981. This aspect is also concluded by the judgment of the Division Bench of this Court in Kankubai Shravikashram Trust and others v. Kamal w/o Dattatraya Khajurkar and others, 1992 Mh.L.J. 216. In para 9 of the judgment, the Division Bench has held that the President of the Institute alone will be competent to issue to the Head, the statement of allegations and none else. In that view of the matter, action of the respondent No. 1 Management is violative of sub-rule (1) of Rule 36 of the Rules of 1981 and hence, bad in law.
8. Similarly, sub-rule 2(b) of Rule 36 provides for constitution of the Enquiry Committee for the purpose of proceeding against Head of the Institution. The Enquiry Committee consists of three members and one of them is required to be President of the Institution. In the instant case, President of the Institution was not member of the Enquiry Committee, which rendered basic composition of the Enquiry Committee defective and same is also not in accordance with sub-rule 2(b) of Rule 36. Since constitution of the Enquiry Committee was defective, in my opinion, the proceedings conducted by such defective Enquiry Committee stand vitiated.
9. For the reasons stated above, the impugned order of termination dated 29-2-1988 passed by the respondent No. 1 and impugned judgment and order dated 20-2-1989 passed by the Presiding Officer, School Tribunal are mis-conceived and devoid of substance and hence, same are hereby set aside. It is brought to my notice that the petitioner had reached age of superannuation in April 1998. Therefore, petitioner is deemed to have been reinstated in service from the date of termination and treated to be in employment till his superannuation. The respondent No. 1 Management is directed to treat the case of the petitioner for the purpose of pensionary benefits as retired in April 1998 in the capacity of the Head Master. As far as back wages are concerned, the same are not specifically asked for in the petition by the petitioner. However, learned Counsel for the petitioner has requested this Court to direct the respondent No. 1 Management to pay the same it will be proper to direct the petitioner and respondent No. 1 Management to place appropriate material before respondent No. 2 Education Officer in this regard and after taking into account the material placed by the petitioner as well as respondent No. 1, respondent No. 2 Education Officer is expected to consider as to whether petitioner was gainfully employed elsewhere during such period and duration of such employment and give decision in this regard and it is only thereafter, the respondent No. 1 shall make payment of back wages to the petitioner for which petitioner is en titled in view of decision of the Education Officer.
10. In the result, writ petition is allowed. The rule is made absolute in the above terms. No order as to costs.
11. Writ petition allowed.