Bombay High Court
Somaiya Vidyavihar Somaiya Bhavan vs Shekhar Deshmukh on 7 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:7446
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.25081 OF 2023
1 Somaiya Vidyavihar
Somaiya Bhavan
45-47 M.G. Road, Fort,
Mumbai - 400 001.
2 S.K. Somaiya Vinay Mandir
Junior College
through its Headmaster
having an office at
Vidyavihar (East)
Mumbai - 400 077. ....Petitioners
V/S
1 Shekhar Deshmukh
201, Rukhmani Apartment
Plot No.36A, Sector 8A,
Airoli, Navi Mumbai - 400 708.
2 Deputy Director of Educational
(Mumbai Region), having office
at Netaji Subhash Marg,
Jawahar Bal Bhawan, Charni Road,
Near Tarapore Aquarium
Mumbai - 400 004.
3 State of Maharashtra
Notice through Govt. Pleader,
High Court, Original Side,
Mumbai. ....Respondents
_________
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Mr. Lancy D'souza with Ms. Deepika Agarwal and Mr. V.M. Parkar for the
Petitioners.
Mr. Mihir Desai, Senior Advocate with Mr. Swaraj Jadhav for Respondent
No.1.
Mr. Himanshu B. Takke, AGP with Mr. Manish Upadhye, AGP for
Respondent Nos.2 and 3/State.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 29 APRIL 2024.
PRONOUNCED ON : 07 MAY 2024.
J U D G M E N T:
1 Rule. Rule is made returnable forthwith. With the consent of the learned counsel appearing for the parties, Petition is taken up for final hearing and disposal.
2 Petitioner-Management has filed this Petition challenging the judgment and order dated 6 July 2023 passed by Presiding Officer, School Tribunal, Mumbai, in Appeal No.21 of 2021. The School Tribunal has partly allowed the Appeal filed by Respondent No.1 and has set aside his termination order dated 10 May 2021. Petitioner-Management is directed to reinstate the Respondent No.1 on the post of Assistant Teacher with all consequential benefits, with further directions to pay arrears of emoluments from the date of termination till the date of his reinstatement. The prayer of Respondent No.1 for release of his salary as per prescribed pay scale from 17 September 2019 till the date of his termination is however rejected.
katkam Page No. 2 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::k 3/15 13_wpl_25081.23_J_os.doc 3 Facts of the case are that Petitioner No.1 is a Trust which administers
various Educational Institutions. Petitioner No.2 is a Junior College administered by Petitioner No.1-Trust and has about 3400 plus students.
4 Respondent No.1 was initially appointed in Petitioner No.2-Junior College for academic year 1998-1999 and was again appointed for next academic year 1999-2000. He was placed under suspension on 6 December 2001 and was thereafter terminated from services consequent to disciplinary enquiry with effect from 4 April 2006. He approached School Tribunal challenging his termination. By judgment and order dated 10 February 2006 his termination was set aside. The School Tribunal's decision was challenged by the Petitioner-Management before this Court and both the sides filed consent terms before this Court, under which Respondent No.1 was reinstated on his original post. From 1 February 2012 he was transferred from unaided post to aided post in Respondent No.2-College and his services were approved as Shikshan Sevak with effect from 1 February 2012. He filed Writ Petition before this Court challenging his approval on the post of Shikshan Sevak and by order dated 3 June 2018, this Court allowed the Petition and directed grant of approval on the post of Assistant Teacher from 1 February 2012.
5 Respondent No.1 was apparently using social networking site 'Facebook' by opening an account thereon. One Ms. Shiba Kazi, who used to work in MCVC Department of SK Somaiya Vinay Mandir during the year 2014 to 2018 lodged a complaint with the police alleging that Respondent katkam Page No. 3 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 ::: k 4/15 13_wpl_25081.23_J_os.doc No.1 sent lewd and obscene messages to her from 3 August 2019 to 5 August 2019. She also submitted a complaint to the Principal on 10 August 2019 alleging sending of obscene messages by Respondent No.1 to her on Facebook messenger. The Petitioner-Management adopted a resolution for placing Respondent No.1 under suspension and to issue statement of allegations to him. By order dated 17 September 2019, Respondent No.1 was placed under suspension and on the same day, he was also issued with statement of allegations. Respondent No.1 replied the statement of allegations on 3 October 2019 and relied upon forensic report of M/s. Helik Advisory in support of his defence that his Facebook message account was hacked. The Petitioner-Management adopted a resolution dated 11 October 2019 for initiation of inquiry against Respondent No.1 and nominated Convener and State Awardee Teacher. Charge-sheet dated 2 November 2019 came to be issued to Respondent No.1 alleging that on 5 August 2019 he sent lewd and obscene messages to Ms. Kazi and outraged her modesty. Respondent No.1 replied the charge-sheet on 12 November 2019. The inquiry was conducted by the Inquiry Committee, comprising of a Convenor, Awardee Teacher and Defence Nominee. According to Respondent No.1 while he was cross- examining Ms. Kazi on 28 January 2021 some unidentified persons entered the venue of inquiry and disturbed the same, thereby abruptly stopping of cross- examination of Ms. Kazi. According to the Respondent No.1, on account of atmosphere of fear created at the venue of the inquiry, he could not further cross-examine Ms. Kazi and lodged police complaint against persons who intervened in the inquiry.
katkam Page No. 4 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::k 5/15 13_wpl_25081.23_J_os.doc 6 On the contrary, it is Petitioner-Management's contention that due
opportunities were given to Respondent No.1 to participate in the inquiry by providing adequate security. The Convener submitted summary of proceedings of inquiry on 12 April 2021. Respondent No.1 responded to the summary on 21 April 2021. The report and findings of the inquiry was prepared by the Convener and State Awardee Teacher. The same were not signed by the defence nominee of Respondent No.1, who deferred with the findings in a separate report. The inquiry committee held Respondent No.1 guilty of the charges and recommended that his services be terminated. Based on the findings of the inquiry committee, Petitioner-Management issued order dated 10 May 2021 terminating services of Respondent No.1.
7 Respondent No.1 filed Appeal No.21 of 2021 before the School Tribunal, Mumbai challenging his termination. The Appeal was resisted by Petitioner-Management by filing written statement. By its judgment and order dated 6 July 2023, the School Tribunal has proceeded to allow the Appeal of the Respondent No.1 by setting aside termination order dated 10 May 2021. Petitioner-Management has been directed to reinstate Respondent No.1 in service on the post of Assistant Teacher with all consequential benefits along with arrears of emoluments from the date of termination till the date of the reinstatement. However, the prayer of Respondent No.1 to release arrears of salary as per prescribed pay scale from 17 September 2019 till the date of his termination is rejected. Aggrieved by the School Tribunal's decision dated 6 July 2023, Petitioner-Management has filed the present Petition.
katkam Page No. 5 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::k 6/15 13_wpl_25081.23_J_os.doc 8 Mr. Lancy D'souza, the learned counsel appearing for Petitioner-
Management would submit that the School Tribunal has committed a gross error in setting aside termination of Respondent No.1, who is found guilty of grave misconduct of sending lewd and obscene messages to his former colleague. Respondent No.1 was employed as Assistant Teacher in School and Junior College where there are several students and other female employees. That continuation of Respondent No.1 in service is thus not in the interest of Petitioner-Management or the girl students. That once the charge was held to be proved, the employer is entitled to remove Respondent No.1 from service so as to ensure that he does not interact with other female teaching staff, employees and girl students. That Respondent No.1 has been given full opportunity of defence in validly conducted inquiry proceedings. That he had already cross-examined Ms. Kazi substantially and after the alleged incident of disturbance of inquiry by unknown persons, Respondent No.1 was again given multiple chances to complete the cross-examination. That the alleged incident of disturbance of inquiry had occurred on 28 January 2021 whereafter the inquiry was fixed on 9 February 2021, 16 March 2021, 30 March 2021 and 9 April 2021, when Respondent No.1 failed to remain present. That therefore no fault can be found in the inquiry proceedings, where full-fledged opportunity was given to Respondent No.1 to defend himself. That the School Tribunal has erred in holding that Respondent No.1 was not given proper or fair opportunity to cross-examine complainant Ms. Shiba Kazi.
katkam Page No. 6 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::k 7/15 13_wpl_25081.23_J_os.doc 9 Mr. D'souza would submit that the School Tribunal has erred in
holding that the Convener of the Inquiry Committee could not have acted as member of inquiry committee. Mr. D'Souza would further submit that the findings of School Tribunal about perversity in the findings are totally erroneous. That the School Tribunal erroneously shifted the burden of proving genuineness of Facebook messages through IT expert. That once sending of messages from account of Respondent No.1 was proved and if it was his defence that his account was hacked, the burden of proving that defence rested on shoulders of Respondent No.1 and the same could not have been shifted on Petitioner-Management. That creation of so-called fake Facebook personal profile of Ms. Kazi has nothing to do with Respondent No.1 sending messages to her.
10 Mr. D'souza would submit that the misconduct committed by Respondent No.1 is so grave that his continuation in service is not at all warranted. In support of his contentions Mr. D'souza would rely upon following judgments:
i) Banda Navbharat Shikshan Prasarak Mandal & Ors. vs. Raghunath Ganesh Manorikar & Ors., 1993-I L.L.N. 517 Bombay High Court;
ii) Air-India Corporation, Bombay vs. V.A. Rebellow & Anr. (1972) 1 SCC 814;
iii) Anil Kumar Chakraborty & Anr. vs. M/s. Saraswatipur Tea Company Limited & Ors. (1982) 2 SCC 328.
11 Per contra, Mr. Mihir Desai the learned senior advocate appearing on behalf of Respondent No.1 would oppose the Petition and support the katkam Page No. 7 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 ::: k 8/15 13_wpl_25081.23_J_os.doc decision of the School Tribunal. He would submit that the inquiry proceedings are vitiated on account of non-grant of proper opportunity of defence to Respondent No.1. That the star witness viz Ms. Shiba Kazi was not allowed to be fully cross-examined by Respondent No.1.That the inquiry is also vitiated on account of the Convener of the inquiry acting as member of inquiry committee.
12 So far is merits of charges are concerned, Mr. Desai would contend that hacking of social media accounts is not uncommon. That there is absolutely no background between Respondent No.1 and Ms. Kazi in respect of the alleged messages sent to her. That she admitted during her cross-examination that a fake Facebook profile was created in her name. That this response was given by her against the query raised by Respondent No.1 about she sending a friend request to him. That if the story of hacking of Facebook account of Ms. Kazi can be accepted, there is no reason why similar defence taken by Respondent No.1 is to be ignored. That therefore the School Tribunal has rightly held that the finding of guilt by the inquiry committee is perverse.
13 Mr. Desai would submit that Respondent No.1 has been working with the Petitioner-Management since 30 November 1998 and has thus rendered more than 26 long years of services. That there is no other complaint against Respondent No.1. That if he was not a threat to girl students or female employees for 20 long years, it is incomprehensible as to how he could suddenly become a threat for being dismissed from service. That he is deliberately victimized by the management for approaching courts. That he katkam Page No. 8 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 ::: k 9/15 13_wpl_25081.23_J_os.doc was left with just four years of service before retirement and the order of dismissal deprives him of pensionary benefits. He would pray for dismissal of the Petition.
14 Rival contentions of the parties now fall for my consideration.
15 Respondent No.1 undoubtedly faced a very serious charge of sending obscene messages to complainant Ms. Shiba Kazi from his Facebook messenger account. It is not denied that the messages have gone from the account of Respondent No.1 and are received in the account of the complainant. The charge-sheet refers to two messages that have gone to the complainant through the account of Respondent No.1 on 5 August 2019.
16 It appears that complainant Ms. Shiba Kazi was not in employment of Petitioners as on 5 August 2019. She had worked with Petitioner- Management on clock hour basis as a teacher during 2015 till September 2018. From the evidence on record, it appears that Respondent No.1 had no acquaintance with the complainant during the tenure of her service. It is alleged that the contact number of complainant was given to Respondent No.1 Mr. Shrikant Joshi on 3 August 2019 as per complainant's consent. It is alleged that the Respondent No.1 had liked one of the old pictures of the complainant on her Facebook account, which was tagged by Mr. Shrikant Joshi and was notified to Respondent No.1. It appears that the complainant also did not know who Respondent No.1 was. It is under this background that there is allegation of sudden popping up of obscene messages sent through the katkam Page No. 9 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 ::: k 10/15 13_wpl_25081.23_J_os.doc account of Respondent No.1 to the account of the complainant on 5 August 2019. The messages are undoubtedly obscene and clearly would outrage modesty of a woman. The issue however is whether the same were sent by Respondent No.1. As observed above, there is no denial to the fact that the messages originated from the account of Respondent No.1. Respondent No.1 has however relied on forensic audit report of M/s. Helik Advisory in support of his defence that his account was hacked and that some unknown person illegally sent messages to random persons from his account. However, during the course of inquiry Respondent No.1 did not prove the said forensic audit report by examining its author.
17 The complainant appeared as a witness in the inquiry and gave her evidence on 20 January 2021. She was subjected to cross-examination by Respondent No.1 who asked 26 questions to her. Respondent No.1 submits that while the cross-examination was under progress the same was disrupted by sudden intervention of 6 to 7 persons who threatened Respondent No.1. He alleges that the said persons were sent by the complainant. The School Tribunal has accepted the version of Respondent No.1 by holding there was high probability that the said persons were connected either with the complainant or with the subject matter of inquiry. The Petitioner- Management refutes the said allegation by submitting that the said persons were actually making inquiries regarding admissions and had no connection with inquiry against Respondent No.1. I do not find any reason why said unknown persons can be connected to the complainant. There was no reason for the complainant to threaten Respondent No.1 after about two years of the katkam Page No. 10 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 ::: k 11/15 13_wpl_25081.23_J_os.doc incident of sending messages. There was also no reason for the complainant to avoid cross-examination as she attended the inquiry twice on 20 January 2021 and 28 January 2021. The findings of the Tribunal in this regard are clearly erroneous.
18 Perusal of the brief summary of inquiry would indicate that after 28 January 2021, the inquiry was fixed on 9 February 2021, 16 March 2021, 30 March 2021 and 9 April 2021 when Respondent No.1 did not attend the inquiry. It is therefore difficult to accept that Respondent No.1 was not given full opportunity of conducting cross-examination of the complainant. It is also a matter of dispute as to whether cross-examination of the complainant was complete (as there is recording to that effect at the end of complainant's deposition) or whether it indeed remained inconclusive. Be that as it may. When inquiry was fixed on 4 occasions, Respondent No.1 ought to have remained present and demanded further cross-examination of Ms. Kazi.
19 So far as the defect noticed by the School Tribunal about Convener of the inquiry acting as Member of the inquiry committee is concerned, in fact Mr. Desai has urged that Respondent No.1 is not interested in setting aside the inquiry proceedings on that ground as the same would result in a de novo inquiry, which is neither in the interest of Management nor Respondent No.1 and most certainly not in the interest of the complainant. I fully agree with the said submission of Mr. Desai and therefore this issue need not be discussed further.
katkam Page No. 11 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::k 12/15 13_wpl_25081.23_J_os.doc 20 Coming to the merits of charges, which are held to be proved against
Respondent No.1, he took a defence that his Facebook messenger account was hacked and several messages got sent through his account to random persons. As observed above, when the complainant worked with the Petitioner-Management during 2015 till September 2018, there is nothing on record to indicate that Respondent No.1 ever misbehaved with her. It is also an admitted position that Respondent No.1 never contacted the complainant prior to sending the messages in question. The complainant has also admitted during the course of her cross-examination that some fake profiles were created in her name on Facebook and that she had filed police complaints in that regard. While Mr. D'souza is not entirely wrong in contending that there is no connection between creation of fake profiles in the name of complainant with the act of Respondent No.1 sending obscene messages to her, the question relating to creation of fake Facebook profiles was connected with a friend request allegedly sent by complainant to Respondent No.1. When complainant was asked about sending of friend request to Respondent No.1 on his Facebook account, complainant took a defence that fake profiles in her name were created on Facebook. Without delving any further into this aspect, it would be suffice to observe that both Respondent No.1 as well as the complainant have raised claims about either hacking of the account or creation of fake profiles. The School Tribunal has accepted the defence of Respondent No.1 about hacking of his account. The School Tribunal is not entirely correct in shifting the burden of proving negative on the Petitioner- Management since it was responsibility of Respondent No. 1 to prove that his account was hacked by examining a technical expert.
katkam Page No. 12 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::k 13/15 13_wpl_25081.23_J_os.doc 21 No doubt the charges levelled against Respondent No.1 are grave.
Mr. D'souza is right in contending that if any teaching staff indulges in misconduct of sending obscene messages to a female colleague such staff becomes a danger not just to the female staff but also to girl students taking education in the school/college. Such conduct completely vitiates the holistic atmosphere of an educational institution. His reliance on judgment of this Court in this regard in Banda Navbharat Shikshan Prasarak Mandal is apposite. However, in the present case some doubts have surfaced about Respondent No.1 being the author of the messages on account of the defence of hacking of his account raised by him coupled with admission by complainant about creation of fake profiles in her name on Facebook. Therefore, though Respondent No.1 cannot be completely absolved in respect of charges levelled against him, considering the doubts that have surfaced about his role in the entire episode, in my view, punishment other than dismissal from service was warranted in the unique facts and circumstances of the present case. This is not to suggest that the misconduct alleged against Respondent No. 1 is not serious, but because of doubts that are discussed above. Since the concerned messages have originated from account of Respondent No. 1 and since it was his burden to prove that his account was hacked, which he failed to discharge, he deserves some punishment. Rule 29 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 prescribes penalties of warning, withholding of increment, recovery from pay and reduction in rank apart from the punishment of termination of service. In the present case punishment of reduction in rank cannot be imposed on account of the fact that Respondent No.1 continues to katkam Page No. 13 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 ::: k 14/15 13_wpl_25081.23_J_os.doc work on the same post of Assistant Teacher on which he was appointed. He has worked with the Petitioner- Management for a considerable period of time since 30 November 1998 and appears to be at the fag end of service which just four years left for his retirement. Penalty of termination from service would result in denial of pension and pensionary benefits to him in respect of long service rendered by him. In that view of the matter, denial of back-wages coupled with imposition of punishment of withholding of increments and not treating the intervening period from date of suspension till reinstatement would the meet ends of justice in the facts and circumstances of the present case. This would ensure that in addition to penalty of stoppage of 1 increment under Rule 29, Petitioner does not earn increments from 17 September 2019 till his reinstatement and the said period is not counted for any purposes, except for qualifying service for pension. Denial of backwages would also ensure that no financial burden is imposed on Petitioner management, who has made sincere efforts in holding inquiry in the case.
22 Writ Petition accordingly partly succeeds, and I proceed to pass the following order:
i) judgment and order dated 6 July 2023 passed by School Tribunal Mumbai in Appeal No.21 of 2021 is modified to the extent that the termination order dated 10 May 2021 of Respondent No.1 shall stand set aside and he shall be reinstated in service.katkam Page No. 14 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::
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ii) However Respondent No.1 shall not be entitled to any backwages during the period from 10 May 2021 till the date of his reinstatement.
iii) Petitioner-Management shall impose the punishment of withholding of increment on Respondent No.1.
iv) The period from date of suspension i.e. 17 September 2019 till the date of reinstatement shall however be counted only for the purpose of qualifying service for pension. The same shall not be counted for any other purpose such as back-wages, drawal of increments, leave, etc. Beyond the subsistence allowance paid in respect of suspension period, Respondent No. 1 shall not be entitled to any further payments in respect of suspension period.
v) Respondent No.1 shall be reinstated in service within four weeks.
23 With the above directions, the Writ Petition is partly allowed. Rule is made partly absolute. There shall be no orders as to costs.
(SANDEEP V. MARNE, J.) 24 After the judgment is pronounced, the learned counsel appearing for the Petitioners seeks stay of the judgment for a period of six weeks. The request is opposed by the learned counsel appearing for Respondent No.1. Considering the reasoning adopted while passing the order, request for stay is rejected.
(SANDEEP V. MARNE, J.) katkam Page No. 15 of 15 ::: Uploaded on - 07/05/2024 ::: Downloaded on - 09/05/2024 09:20:14 :::