Bombay High Court
Society Of Sisters Of Saint John And ... vs Arvind S/O Narayan Lajurkar And 2 Others on 9 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 33, 2020 (2) ABR 135 (2020) 2 ALLMR 1, (2020) 2 ALLMR 1
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 282 OF 2015
(1) Society of Sisters of Saint John,
Registration No.139/73(W) F-177(W),
Nalawadi Road, Mhasala, Wardha
(2) Saint John High School, Hinganghat,
District Wardha through its Principal. .. PETITIONERS
...V E R S U S...
(1) Arvind s/o Narayan Lajurkar,
aged about major,
R/o. C/o. Kishor Nahate,
Yashwant Nagar, Hinganghat,
District Wardha
(2) The Education Officer,
Secondary Zilla Parishad, Wardha
(3) Presiding Officer,
School Tribunal, Chandrapur .. RESPONDENTS
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Mr. R. M. Bhangde, counsel for petitioners.
Mr. S. U. Ghurde, counsel for respondent No.1.
Mr. S. B. Bissa, AGP for respondents No.2 & 3.
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CORAM:- MANISH PITALE J.
DATED :- 09/01/2020
JUDGMENT
By this writ petition the petitioners i.e. management and the school have challenged judgment and ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 2 / 22 wp282.15.odt order dated 19/12/2014, passed by the School Tribunal, Chandrapur, whereby appeal filed by the respondent No.1 was allowed and the order of termination of service was set aside. The Tribunal further directed reinstatement of respondent No.1 with full back-wages.
(2) The facts leading to filing of the present writ petition are that the respondent No.1 was appointed as physical training instructor (teacher) on 10/07/1992, with the petitioner No.2 school by the petitioner No.1 management. The material placed on record shows that in February 2002, there was complaint made against the respondent No.1 that the said respondent had behaved in an indecent and vulgar manner with the students, on the basis of which, a communication was addressed by the Principal of the petitioner No.2 school to the respondent No.1. A warning was given to the respondent No.1 to desist from behaving in such a manner. Thereafter, on 12/12/2005, the respondent No.1 was again communicated about his unruly behaviour and his insistence that his daughter should stand first in her class. ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 :::
3 / 22 wp282.15.odt It was made clear to him that his daughter got marks as per her performance and that the respondent No.1 should desist from nasty, rude and insulting behaviour with other teachers. This document bears the signature of respondent No.1 also.
(3) Another such communication dated 20/06/2009, is on record, which also bears signature of respondent No.1, wherein it is recorded that the respondent No.1, in an agitated frame of mind, had slapped one of his colleagues in the school premises. The respondent No.1 was again warned not to behave in such a manner or to create trouble in the school. Thereafter, on 26/03/2010, the respondent No.1 was found sleeping in the sports room after allegedly having overdose of tablets. This incident was recorded under the signature of all the teachers of the school.
(4) Thereafter, on 27/04/2010, a show-cause notice was issued to the respondent No.1 by the petitioner No.2 school through its Principal in respect of improper behaviour with students, their parents, as also teachers of the school and explanation was called from the respondent ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 4 / 22 wp282.15.odt No.1. The allegations were denied by the respondent No.1. At this stage on 25/11/2010, the Principal of the petitioner No.2 school received a complaint from father of a student making serious allegations against respondent No.1 regarding his behaviour in the backdrop of an incident wherein the student concerned was undressed by his classmates. This incident led to a situation where on 03/02/2010, the respondent No.1 was issued with a charge-sheet levelling 05 serious charges against him, concerning unruly, improper and abusive behavoiur with students, their parents as also teachers of the school, reporting late to work, dereliction in duty, insubordination and making misleading and false statements before Government Officials.
(5) The respondent No.1 denied the charges levelled against him, leading to initiation of enquiry against him under the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. Accordingly, an Enquiry Committee consisting of one representative of the management, one representative of respondent No.1 and ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 5 / 22 wp282.15.odt one state awardee teacher was constituted, which inquired into the allegations made against respondent No.1. (6) The Enquiry Committee submitted its report dated 20/02/2012, finding that all the charges levelled against the respondent No.1 were proved. The petitioners issued show-cause notice to the respondent No.1 as to why major penalty ought not to be imposed upon him, in pursuance of the findings rendered in the enquiry report, to which the respondent No.1 submitted reply. Thereafter, on 19/06/2012, the petitioner No.1 passed the order terminating services of the respondent No.1 from the petitioner No.2 school. Aggrieved by the same, the respondent No.1 filed appeal before the Tribunal wherein the impugned judgment and order has been passed by the Tribunal. It was found that the appointment of the respondent No.1 was in terms of Section 5 of the aforesaid Act. It was further found that the enquiry was not properly conducted and it was vitiated, because the respondent No.1 was never given an opportunity to cross-examine the witnesses examined by the petitioners to prove the charges. On this basis, the order of termination of service was set ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 6 / 22 wp282.15.odt aside and the petitioners were directed to reinstate the respondent No.1 with full back wages. Thereafter, it is a matter of record, that the petitioners deposited an amount of Rs.4,00,000/- [Rupees Four Lakhs only], out of which an amount of Rs.1,00,000/- [Rupees One Lakh only] was withdrawn by the respondent No.1.
(7) Mr. R. M. Bhangde, learned counsel for the petitioners submitted that the impugned judgment and order passed by the Tribunal deserved to be set aside, because firstly, the finding regarding appointment of the respondent No.1 in terms of Section 5 of the aforesaid Act was erroneous, because there was no advertisement issued while selecting and appointing the respondent No.1 and that therefore, his appointment was a back door entry. Secondly, it was submitted that the charges levelled in the present case against the respondent No.1 in the backdrop of series of complaints submitted by the students, parents and teachers demonstrated that the respondent No.1 did not deserve to be reinstated in service, even if the enquiry was said to have been vitiated. Thirdly, it was submitted that a denovo enquiry in the facts and circumstances of the ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 7 / 22 wp282.15.odt present case even if it was to be ordered, the same was not justified, because the incidents in question were about 10 years old and none of the students who could be material witnesses were available and that no purpose would be served by such an enquiry. Fourthly, the direction of reinstatement was erroneous in the facts and circumstances of the present case and even if the order of termination of services was held to be improper, the School Tribunal ought to have exercised power under Section 11(2)(e) of the aforesaid Act to direct payment of compensation instead of granting reinstatement. Fifthly, it was submitted that although the respondent No.1 stated on affidavit before the Tribunal and this Court that he was not gainfully employed, there was material placed on record before this Court to show that from the year 2012 itself, the respondent No.1 was working in another school and therefore, there was no question of payment of full back wages as directed by the Tribunal. Sixthly, it was submitted that false statements on affidavit were made on behalf of the respondent No.1 before the Tribunal as well as before this Court, in a casual manner and therefore, adverse inference was required to be drawn against him ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 8 / 22 wp282.15.odt while considering the nature of relief to be given. The learned counsel made reference to various judgments in support of the aforesaid submissions, which will be referred to at the relevant place in this judgment. On the basis of such submissions, it was submitted that the impugned order deserved to be set aside and if the respondent No.1 was found entitled to any relief, the petitioners could at the most be directed to pay compensation instead of reinstatement with back wages.
(8) On the other hand, Mr. S. U. Ghurde, learned counsel for the respondent No.1 submitted that the said respondent had been admittedly working in the petitioner No.2 school for a long period of 20 years and it could not lie in the mouth of the petitioners to claim that the appointment of respondent No.1 was a back door entry or it was illegal and that therefore, the appeal filed under Section 9 of the aforesaid Act could not be entertained by the School Tribunal. It was submitted that since enquiry was conducted by the petitioners against the respondent No.1 under the aforesaid Act and Rules, he was treated as a properly appointed employee under Section 5 of the said ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 9 / 22 wp282.15.odt Act by the petitioners themselves. On this basis it was submitted that the Tribunal was justified in rendering finding in favour of the respondent No.1 on the said issue. (9) It was further submitted that the Tribunal was justified in holding that the entire enquiry stood vitiated due to denial of opportunity to the respondent No.1 to cross-examine witnesses examined by the petitioners and considering the totality of the circumstances, the direction of reinstatement with back wages upon quashing the order of termination of service was fully justified and that the impugned order did not deserve interference in writ jurisdiction.
(10) Heard learned counsel of the rival parties and perused the material on record. There is no material on record to show that when the respondent No.1 was appointed on 10/07/1992, as a physical teacher in the petitioner No.2 school by the petitioner No.1 management, any advertisement was issued. It is in this backdrop, that the petitioners have claimed that appointment of respondent No.1 was not under Section 5 of the Act and ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 10 / 22 wp282.15.odt that therefore, the Tribunal ought to have given negative finding on the said issue against respondent No.1. But, considering the fact that the petitioners themselves never took any action against respondent No.1 for a long period of 20 years after his appointment, indicates that they had not treated him as an illegally appointed employee. The petitioners cannot turn around and claim that since the appointment of the respondent No.1 was in violation of Section 5 of the Act, the Tribunal ought not to have entertained the appeal. The petitioners themselves invoked the provisions of the aforesaid Act and Rules, particularly, Rule 36 of the Rules framed under the said Act to constitute an Enquiry Committee, which inquired into the charges levelled against the respondent No.1. The order of termination of service dated 19/06/2012, squarely relied upon the findings rendered by the said Enquiry Committee. Therefore, the petitioners are not entitled to claim before the Tribunal and this Court that the appointment of the respondent was illegal and that therefore, the Tribunal could not have exercised jurisdiction to entertain appeal filed by the respondent No.1 under Section 9 of the said Act. Therefore, the finding rendered by the Tribunal in this ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 11 / 22 wp282.15.odt regard does not deserve interference. Insofar as the direction of reinstatement with back wages granted by the Tribunal is concerned, it would be necessary to go into the backdrop in which the enquiry was initiated against the respondent No.1, the manner in which the enquiry was conducted and the requirement on the part of the Enquiry Committee to grant an opportunity to respondent No.1 to cross-examine the witnesses.
(11) As noted above, from February 2002 till the charge-sheet was issued to the respondent No.1 and even thereafter, during the pendency of the enquiry against the respondent No.1, there were series of complaints against the respondent No.1 as regards his unruly, rude and abusive behaviour in the school. The documents placed on record show that in each such complaint, warning and communication issued by the petitioners, the signatures of the respondent No.1 exist. This shows that the respondent No.1 was not only aware about the complaints being made against him, but he had promised to improve his behaviour, due to which he was continued in service by the petitioners. The nature of 05 charges levelled against the ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 12 / 22 wp282.15.odt respondent No.1, as noted above, were serious in nature. The complaints made against the respondent No.1 during the pendency of the enquiry indicate the manner in which the respondent No.1 chose to behave with students, parents and his colleagues.
(12) The Enquiry Committee in its report found that all the 05 charges were proved against respondent No.1. The School Tribunal has found that the enquiry stood vitiated for the reason that the respondent No.1 was never granted an opportunity by the Enquiry Committee to cross examine the witnesses who were examined by the management to prove the charges against him. There is also nothing on record that the respondent No.1 specifically made a request to cross-examine the witnesses or that on such a request being made, he was denied the opportunity to cross-examine. It is another matter that in order to ensure adherence to the principles of natural justice, it was for the Committee to have granted an opportunity to respondent No.1 to cross-examine the witnesses and if he had failed to avail of such opportunity, to record such fact in its report. A perusal of the enquiry report does not show ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 13 / 22 wp282.15.odt that such an exercise was carried out by the Enquiry Committee, thereby showing that there was violation of the principles of natural justice to that extent. Therefore, the School Triunal was justified in holding that the enquiry stood vitiated to that extent. But in such circumstances, as per settled law, when a finding was rendered that principles of natural justice stood violated, a direction to hold denovo enquiry could have been given. Such an enquiry was required to be held afresh from the stage where the principles of natural justice stood violated. Instead, the School Tribunal directly reached a conclusion that respondent No.1 deserved to be reinstated with full back wages. There is no doubt about the fact that in a few cases, an order of reinstatement with back wages can be granted without necessitating denovo enquiry, but those are cases where the Tribunal or the Court comes to a conclusion that the employee has been treated in a most malafide manner by the management and that the management by hook or crook was seeking to get rid of the employee.
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14 / 22 wp282.15.odt (13) In the present case, the material on record does not show that the petitioners had acted in a malafide manner against the respondent No.1. Therefore, at best the relief that could have been granted by the Tribunal in the face of the finding that the enquiry had been vitiated, was to have directed denovo enquiry into the charges levelled against respondent No.1. By not doing so and directing reinstatement of respondent No.1 with full back wages, the Tribunal certainly committed an error.
(14) There appears to be substance in the contention raised on behalf of the petitioners that to direct denovo enquiry in the present case would be of little utility, because the charge-sheet pertains to incidents that are now about 10 years old and that the crucial witnesses including students would not be available for proper, detailed and fair enquiry. In such a situation, the contentions raised on behalf of the petitioner pertaining to Section 11 of the said Act assume significance. The said provision reads as follows :-
"11. Powers of Tribunal to give appropriate relief and direction :-::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 :::
15 / 22 wp282.15.odt (1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal.
(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,--
(a) to reinstate the employee on the same post or on lower post as it may specify;
(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify ;
(c) to give arrears of emoluments to the employee for such period as it may specify;
(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be ;
(e) where it is decided not to reinstate the employee or in any other appropriate case, [to give to the employee twelve months' salary (pay and allowances, if any), if he has been in the service of the school for ten years or more and six months' salary (pay and allowances, if any) if he has been in service of the school for less than ten years], by way of compensation, regard being had to loss of employment and possibility of getting or not getting ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 16 / 22 wp282.15.odt suitable employment thereafter, as it may specify; or
(f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case. (3) It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee any employments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee direct.
(4) Any direction issued by the Tribunal under sub- section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management."
(15) A perusal of Section 11(2)(e) quoted above would show that in a given case, even if the Tribunal comes to a conclusion that termination of service of employee is illegal or improper, the only option is not to direct reinstatement with back wages, but to grant compensation in the manner provided under Section 11(2)(e) of the Act. This provision was not referred to by the Tribunal in the present case at all, although it assumes significance in the peculiar facts and circumstances of the present case. ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 :::
17 / 22 wp282.15.odt (16) In this context another aspect of the present case assumes significance, which is that a person filing false and incorrect affidavit cannot invoke sympathy of the Court. Although the learned counsel appearing for respondent No.1 submitted that the petitioners had acted in an unfair manner against the said respondent and that he deserved the relief granted by the Tribunal, the record shows that the respondent No.1 had emphatically stated on affidavit before the Tribunal as well as this Court that he was not gainfully employed after termination of his service on 19/06/2012 by the petitioners. But the petitioners have placed on record documentary material to show that from the year 2012 itself the respondent No.1 has been working in Gurukul Convent School at Tahasil Zari, District Yavatmal. The documents placed on record have been obtained by the petitioners under the Unified District Information System for Education made available by the National University of Educational Planning and Administration, supported by the Ministry of Human Resources and Development. Documents on record show that the respondent No.1 has been in continuous employment of the said school since the year 2012. The ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 18 / 22 wp282.15.odt said statements made on behalf of the petitioners alongwith documentary material have not been denied on behalf of the respondent No.1 at all. The learned counsel appearing for the respondent No.1 submits that since details of the salary being received by the respondent No.1 were not available in the documents placed on record by the petitioners, the respondent No.1 could not be denied full back wages. But what is crucial in these circumstances is that such documentary material clearly shows that statements made on affidavit by the respondent No.1 before the Tribunal as well as this Court were blatantly false . (17) The Hon'ble Supreme Court has taken serious view in such matters and in the case of M/s. Sciemed Overseas Inc. vs. BOC India Limited & Ors. judgment and order dated 11/01/2016 passed in SLP(C) No.29125/2008, the Hon'ble Supreme Court has emphasized upon the necessity to effectively curb the tendency to file false affidavits with a strong hand, so as to ensure that proceedings before the Court are not vitiated by such false and misleading statements. The Hon'ble Supreme Court in the said case upheld a direction issued by the High Court ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 19 / 22 wp282.15.odt imposing costs of Rs.10 Lakhs on the petitioner who had made false and misleading statement on affidavit before the Court.
(18) Thus, it becomes clear that the respondent No.1 cannot be shown any sympathy for the obvious reason that such false statements were made on affidavit by the said respondent not only before the Tribunal, but before this Court also.
(19) The learned counsel appearing for the petitioners relied upon number of judgments to contend that in the facts and circumstances of the present case, the order of reinstatement with full back wages was wholly unjustified and that since holding of denovo enquiry was also not practical, only a direction for payment of compensation could have been issued by the Tribunal. In support of the said contention, the learned counsel for the petitioners also emphasized the fact that not only was the respondent No.1 gainfully employed since the year 2012 itself in the aforesaid school, but another person had been duly appointed in petitioner No.2 school in the post that ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 20 / 22 wp282.15.odt fell vacant due to termination of service of the respondent No.1. It was submitted that in such circumstances the order of reinstatement with back wages could not have been granted by the Tribunal at all. The learned counsel also relied upon the judgment of Hon'ble Supreme Court in the case of Jayant Vasantrao Hiwarkar vs. Anoop Ganpatrao Bobde and others (2017) 11 SCC 244, where the Hon'ble Supreme Court set aside the order of the High Court and restored an order of School Tribunal wherein power under Section 11(2)(e) of the said Act was exercised by the Tribunal to grant compensation instead of a direction of reinstatement with back wages. (20) In view of the above, as also in the facts and circumstances of the present case, it becomes evident that even if the findings rendered by the Tribunal on the question of the nature of appointment of the respondent No.1 and the enquiry being vitiated due to violation of principles of natural justice, do not deserve interference, but the relief granted by the Tribunal of reinstatement with full back wages deserves interference. This Court finds that in the facts and circumstances of the present case, ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 ::: 21 / 22 wp282.15.odt particularly because there is material to show that the respondent No.1 had indulged in improper behaviour since February 2002 onwards till charge-sheet was issued against him and even thereafter, there is total loss of confidence between the petitioners/employer and the respondent No.1 employee. This Court finds that instead of giving a direction for conducting denovo enquiry at this stage, even if it was found that the enquiry held against the respondent No.1 was vitiated, it would have been in the interest of justice that the Tribunal had exercised power under Section 11(2)(e) of the said Act to direct payment of compensation, instead of a direction for reinstatement with full back wages. This is particularly so in the backdrop that the respondent No.1 had made false statements before the Tribunal as well as this Court regarding not being gainfully employed. Sufficient material has been placed on record on behalf of the petitioners before this Court to show that respondent No.1 has been indeed employed and working in the said school from the year 2012 onwards. (21) Hence, the present writ petition is partly allowed and it is disposed of in the following manner :- ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 :::
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1. The Writ Petition is partly allowed and the direction given by the School Tribunal in the impugned judgment and order directing reinstatement with full back wages to the respondent No.1 is quashed and set aside.
2. The impugned order is modified to the extent that instead of grant of reinstatement with full back wages, the petitioners are directed to pay compensation to the respondent No.1 in terms of Section 11(2)(e) of the said Act and to pay him 12 months salary as compensation. This would be in terms of the salary that the respondent No.1 was receiving in June 2012 when his services were terminated.
3. The amount of Rs.1 Lakh already withdrawn by the respondent No.1 as per direction of this Court, shall be adjusted in the amount of compensation being paid to the respondent No.1.
4. The balance amount, if any, lying in this Court after payment of compensation as aforesaid to the respondent No.1 shall be disbursed to the petitioners alongwith accrued interest, if any.
(22) Rule made absolute in above terms. No order as to costs.
JUDGE KOLHE/P.A. ::: Uploaded on - 16/01/2020 ::: Downloaded on - 08/06/2020 10:18:03 :::