Bombay High Court
Mohd. Irshad Ahmad vs Talha Education And Welfare Society on 24 February, 2012
Author: R.K. Deshpande
Bench: R.K. Deshpande
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wp1753.10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.1753 of 2010
Mohd. Irshad Ahmad,
Aged about 33 years,
R/o Kasadpura,
Tq. Achalpur,
District Amrvati. ... Petitioner
Versus
1. Talha Education and Welfare Society,
Karajgaon, Tq. Chandur (Bazar),
through its President
Mohd. Razik Mohd. Sharif,
Aged about 37 years,
R/o Momimpura,
Anjangaon Surji,
Tq. Anjangaon (Surji),
District Amravati.
2. Talha Education and Welfare Society,
Karajgaon, Tq. Chandur (Bazar),
through its President
Abdul Naim Gulam Nabi,
R/o Saudagarpura,
Karajgaon,
Tq. Chandur Bazar,
District Amravati.
3. The Education Officer (Secondary),
Zilla Parishad,
Amravati.
4. The Hon'ble Presiding Officer,
School Tribunal,
Amravati Division, Amravati. ... Respondents
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Dr. Anjan De, Advocate for Petitioner.
Shri M.A. Vaishnav, Advocate for Respondent Nos.1 and 2.
Smt. K.R. Deshpande, Advocate for Respondent No.3.
CORAM : R.K. DESHPANDE, J.
Date of Reserving the Judgment : 9-2-2012
Date of Pronouncing the Judgment : 24-2-2012
JUDGMENT :
1. This petition is preferred by an employee challenging the judgment and order dated 9-4-2010 passed by the learned Presiding Officer, School Tribunal, Amravati Division, Amravati, dismissing Appeal No.16 of 2010 filed by him challenging his termination by an order dated 3-3-2010 from the post of Head Master, S.K. Kasim Urdu High School, Daryabad, Tahsil Achalpur, District Amravati.
2. The facts of the case are as under :
By an order dated 30-6-2004, the petitioner was appointed as Assistant Teacher on probation with effect from 1-7-2004. He acquired the status of a deemed confirmed Assistant Teacher. He was thereafter promoted on the post of Head Master by an order dated 1-5-2008. On 22-1-2009, the Education Officer granted approval to the appointment of the petitioner on the post of Head Master. On 18-11-2009, a show cause notice was issued to the petitioner and an inquiry was conducted against him. On 25-2-2010, the summary of proceedings was forwarded to the ::: Downloaded on - 09/06/2013 18:13:14 ::: 3 wp1753.10.odt petitioner and he was called upon to furnish his explanation in respect of it. It is the case of the petitioner that he received the summary of proceedings on 2-3-2010. By an order dated 3-3-2010, the services of the petitioner were terminated. Thus, the termination was by way of punishment after holding an inquiry.
3. The petitioner filed Appeal No.16 of 2010 before the School Tribunal challenging his termination. In Ground E of his memo of appeal, a specific averment was made that the summary of proceedings dated 25-2-2010 calling upon the petitioner to furnish his explanation was received by him on 2-3-2010 and his services were terminated by an order dated 3-3-2010. In response to this specific averment, the stand of the Management was that the summary of proceedings dated 25-2-2008 received by the petitioner on 2-3-2010 is not correct. The School Tribunal has recorded the finding in para 23 of its judgment that the summary of proceedings was received by the petitioner on 4-3-2010. On the basis of this finding, the Tribunal has held that there was no violation of Rule 37(4) of the Maharashtra Employees of Private Schools (Conditions of service) Rules, 1981 (for short, "the MEPS Rules") so as to vitiate the order of dismissal. It is not necessary for this Court at this stage to consider the other findings recorded by the School Tribunal for dismissal of the appeal, as the petition needs to be allowed only on one ground, viz. violation of the provision of Rule 37(4) of the MEPS Rules.
4. The question is whether the provision of Rule 37(4) is substantive in character so as to invalidate the order of termination upon ::: Downloaded on - 09/06/2013 18:13:14 ::: 4 wp1753.10.odt its violation. In order to appreciate this question, the provisions of Rule 37(4), (5) and (6) of the MEPS Rules are relevant and hence the same are reproduced below :
"37. Procedure of inquiry.
... ... ...
(4) The Convener of the Inquiry Committee shall forward to the employee or the Head, as the case may be a summary of the proceedings and copies of statements of witnesses, if any, by registered post acknowledgement due within four days of completion of the above steps and allow him a time of seven days to offer his further explanation, if any.
(5) The employee or the Head, as the case may be shall submit his further explanation to the Convener of the Inquiry Committee within a period of seven days from the date of receipt of the summary of proceedings etc., either personally or by registered post acknowledgement due.
(6) On receipt of such further explanation or if no explanation is offered within the aforesaid time the Inquiry Committee shall complete the inquiry and communicate its findings on the charges against the employee and its decision on the basis of these findings to the Management for specific action to be taken against the employee or the Head, as the case may be, within ten days after the date fixed for receipt ::: Downloaded on - 09/06/2013 18:13:14 ::: 5 wp1753.10.odt of further explanation. It shall also forward a copy of the same by registered post acknowledgement due to the employee or the Head, as the case may be. A copy of the findings and decision shall also be endorsed to the Education Officer or the Deputy Director, as the case may be, by registered post acknowledgement due. Thereafter, the decision of the Inquiry Committee shall be implemented by the Management which shall issue necessary orders within seven days from the date of receipt of decision of the Inquiry Committee, by registered post acknowledgement due. The Management shall also endorse a copy of its order to the Education Officer or the Deputy Director as the case may be."
Sub-rule (4) of Rule 37 uses the word 'shall' in respect of forwarding of the summary of proceedings by the Convener of the Inquiry Committee to the employee or the Head, as the case may be. This shows the mandatory character of the rule casting a statutory duty upon the Management. The mandate is in respect of three things, viz.
(i) forwarding of the summary of proceedings and the copies of the statements of witnesses, if any; (ii) sending the same by registered post acknowledgment due within four days of completion of earlier steps; and
(iii) allowing the employee or the Head, as the case may be, a time of seven days to offer his explanation, if any. The object of sending the summary of proceedings by registered post acknowledgment due is two-fold, viz. (i) to ensure that the employee or the Head concerned in fact receives it; and (ii) the Management gets the definite knowledge of ::: Downloaded on - 09/06/2013 18:13:14 ::: 6 wp1753.10.odt the date of receipt by an employee or the Head concerned. This shall enable the Management to observe the mandate of permitting the employee or the Head concerned to furnish his explanation within a period of seven days from the date of receipt of the summary of proceedings.
Sub-rule (5) of Rule 37 correspondingly confers a statutory right upon the employee or the Head, as the case may be, to submit his further explanation to the Convener of the Inquiry Committee within a period of seven days from the date of receipt of the summary of proceedings either personally or by registered post acknowledgment due.
The object of submitting explanation either personally or by registered post acknowledgment due is also two-fold, viz. (i) to ensure that the Convener of the Inquiry Committee in fact receives it within a period of seven days, and (ii) the employee or the Head concerned gets the definite knowledge of receipt of it within seven days by the Convener.
Sub-rule (6) of Rule 37 contemplates that it is only upon receipt of such explanation or if such explanation is not received within a period of seven days, then the Inquiry Committee has to complete the inquiry and communicate its findings on the charges against the employee or the Head, as the case may be, and its decision on the basis of the findings to the Management for specific action to be taken against the employee or the Head within a period of ten days after the date fixed for receipt of further explanation. Thus, the significance of the date of receipt of explanation is made abundantly clear to fix the further ::: Downloaded on - 09/06/2013 18:13:14 ::: 7 wp1753.10.odt period of ten days. In the case of Vidya Vikas Mandal and another v.
Education Officer and another [2007(3) Mh.L.J. 801], decided by the Apex Court, it has been held that the provision of Rule 37(6) is mandatory and all the three members of the Committee are required to submit their combined report within the stipulated time of ten days, which has to be strictly complied with.
5. Thus, there is a statutory duty cast upon the Convener of the Inquiry Committee under sub-rule (4) of Rule 37 to allow an employee or the Head, as the case may be, a time of seven days to offer his explanation, if any. Sub-rule (5) of Rule 37 confers the corresponding statutory right upon the employee or the Head, as the case may be, to furnish his explanation within a period of seven days from the date of receipt of summary of proceedings. The insistence under sub-rule (6) of Rule 37 is that the Inquiry Committee to wait for a period of seven days to receive explanation and it is only after expiry of seven days, further action can be taken. Further, a mandatory period of ten days under Rule 37(6) can be observed only if the requirement of waiting for a period of seven days to receive explanation under Rule 37(5) is observed. The period of seven days can be curtailed only if the explanation is received prior to seven days. However, it cannot be curtailed if the explanation is not received. It is the substantive right conferred upon the employee or the Head concerned under sub-rule (5) of Rule 37 to furnish an explanation within a period of seven days from the date of receipt of the summary of proceedings of the Inquiry Committee and the violation of it, by the Inquiry Committee would result in vitiating the ultimate action of ::: Downloaded on - 09/06/2013 18:13:14 ::: 8 wp1753.10.odt termination of the services also on the ground of breach of the principles of natural justice.
6. In the present case, it is not in dispute that the summary of proceedings, as contemplated by sub-rule (4) of Rule 37 of the MEPS Rules was dated 25-2-2010. Obviously, it must have been forwarded to the petitioner subsequent to that date. The petitioner claims to have received it on 2-3-2010. The Management simply denies the said fact.
The School Tribunal has recorded the finding that the petitioner received it on 4-3-2010. Before this Court, it is urged that on 28-2-2010, the summary of proceedings was received by the petitioner and on that date, the Inquiry Committee has taken the decision to terminate the services.
There is no evidence to show that the petitioner received it on 28-2-2010.
If the decision was taken by the Management on 28-2-2010, the position is still worst for the Management. Obviously, there is no gap of seven days in between the date of issuance of summary of proceedings and the decision to terminate the services taken by the Management. Not only that, but the gap of seven days is also not in between the date of summary of proceedings and the date of termination of the services of the petitioner. Thus, there is a violation of the provisions of sub-rules (4), (5) and (6) of Rule 37 of the MEPS Rules, reproduced above.
7. Both the learned counsels appearing for the petitioner-employee and respondent Nos.1 and 2/Management have relied upon the judgment of the Apex Court in State Bank of Patiala and others v. S.K. Sharma, reported in (1996) 3 SCC 364. Dr. Anjan De for the ::: Downloaded on - 09/06/2013 18:13:14 ::: 9 wp1753.10.odt petitioner has urged that in the said judgment, it has been held that if there is a violation of substantive provisions, then the theory of substantial compliance or the test of prejudice would not be applicable.
As against this, Shri M.A. Vaishnav for respondent Nos.1 and 2/Management has relied upon the said judgment to hold that the provisions of sub-rules (4) and (5) of Rule 37 of the MEPS Rules are not substantive in nature and the same are merely procedural in character and unless the plea of prejudice is pleaded and proved as a result of violation of the said provisions, the ultimate order of termination shall not vitiate.
8. Once it is held that the provisions of sub-rules (4) and (5) of Rule 37 of the MEPS Rules are substantive in nature, then the question of substantial compliance or the test of prejudice would obviously not be applicable. Hence, even if there is absence of pleadings in respect of prejudice in the memo of appeal, that will not save the order of termination from its invalidity.
9. In view of above, the School Tribunal has committed an error in holding that the order of termination cannot be invalidated for violation of Rule 37(4) of the MEPS Rules and it ought to have set aside the said order only on the ground of violation of the provisions of sub-rules (4), (5) and (6) of Rule 37 of the MEPS Rules. The order of the School Tribunal cannot, therefore, be sustained. Since the termination dated 3-3-2010 is held to be in violation of the statutory rights conferred upon the petitioner, the same is also required to be quashed and set aside.
::: Downloaded on - 09/06/2013 18:13:14 ::: 10wp1753.10.odt However, the Management cannot be denied its right to continue with and complete the proceedings of inquiry from the stage of issuance of summary of proceedings, as contemplated by sub-rule (4) of Rule 37 of the MEPS Rules. Since the petitioner was placed under suspension, during the pendency of the inquiry, he will be deemed to be placed under suspension till the completion of the inquiry and the question of payment of back wages shall depend upon the outcome of the inquiry and the Management shall be at liberty to pass an appropriate order in accordance with its final decision.
10. In view of above, the following order is passed :
(i) The petition is allowed. The judgment and order dated 9-4-2010 passed by the learned Presiding Officer, School Tribunal, Amravati Division, Amravati in Appeal No.16 of 2010 is hereby quashed and set aside.
(ii) The order dated 3-3-2010 issued by the Management terminating the services of the petitioner from the post of Head Master is also hereby quashed and set aside.
(iii) The petitioner is reinstated in service on the post of Head Master.
(iv) The Management is permitted to continue with and complete the proceedings of inquiry from the stage of issuance of summary of ::: Downloaded on - 09/06/2013 18:13:14 ::: 11 wp1753.10.odt proceedings, as contemplated by sub-rule (4) of Rule 37 of the MEPS Rules. Pending such inquiry, the petitioner shall remain under suspension. However, he shall be entitled to all the benefits, as are available to the Head Master under suspension.
(v) The question of payment of back wages shall be decided by the Management depending upon the outcome of the inquiry proceedings.
(vi) If ultimately the petitioner is dismissed from service, then it will be open for him to file a fresh appeal challenging the order of dismissal on all such grounds as are available to him in law - including those, which were raised in this appeal.
11. Rule is made absolute in above terms. No order as to costs.
Judge.
Pdl.
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