Laxmidevi Dhiran Kanya Vidyalay ... vs Devendra S/O Baijnath Tiwari And Others on 31 January, 2019

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Bombay High Court

Laxmidevi Dhiran Kanya Vidyalay ... vs Devendra S/O Baijnath Tiwari And Others on 31 January, 2019

DATE OF PRONOUNCING: 31.01.2019 The petitioners herein, have challenged judgment and order dated 14/12/2016 passed by the School Tribunal, Nagpur, whereby the Tribunal has partly allowed appeal of respondent No.1, directing his reinstatement with continuity of service and back wages. This is the second round of litigation between the parties before this Court.

2. The respondent No.1 was initially appointed as assistant teacher in a middle school viz. Lokpriya Vidyalaya, Borgaon, Nagpur and thereafter, upon being declared surplus, he was absorbed in another school named Govardhan Rawal High School, Nagpur and thereafter he was absorbed in Jagjeevanram High School. Thereafter, respondent KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 2/19 No.1 was finally absorbed in petitioner No.4-School being run by petitioner No.1-Trust (Management). The respondent No.1 was absorbed in the petitioner No.4-School on 01/08/1994 and continued to work in the said school. With passage of time, the Management appointed respondent No.1 as a member of the trust also and he was elected as Joint Secretary of the said Trust/Society. It appears that thereafter disputes arose between the Management and respondent No.1 and certain complaints were filed against respondent No.1 and in September, 2005, questions were raised about the qualifications of respondent No.1. A prosecution was also launched against respondent No.1 pertaining to certain allegations made by a lady against him. The said lady had nothing to do with the school or the Management.

3. The Management of the school placed respondent No.1 under suspension and initiated an enquiry, which according to respondent No.1 was illegal and void ab initio due to violation of various provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 and Rules framed there under (hereinafter referred to "MEPS Act and Rules"). In pursuance of the said action initiated by the Management, on 28/02/2007, the Management terminated the services of respondent No.1.

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4. This was challenged by respondent No.1 by filing appeal before the School Tribunal at Nagpur under section 9 of the MEPS Act. By judgment and order dated 05/09/2012, the School Tribunal dismissed the appeal filed by respondent No.1. While doing so, the School Tribunal gave a finding that the appointment of respondent No.1 itself was not made in terms of section 5 of the MEPS Act, as he failed to prove that he had necessary qualifications at the time of entry in employment. At the same time, the School Tribunal also found that there were various discrepancies in enquiry proceeding as there was non-compliance of the mandatory provisions of the MEPS Rules and that the whole enquiry proceeding was vitiated. In this background, the School Tribunal held that the question of charges having been proved against respondent No.1 did not arise.

5. Aggrieved by the said judgment and order of the School Tribunal, respondent No.1 filed Writ Petition No.496 of 2013. The said writ petition was partly allowed by this Court by order dated 01/09/2014, whereby the finding recorded by the School Tribunal pertaining to the issue as to whether the appointment of the appellant was made as per section 5 of the MEPS Act, was set aside and the School Tribunal was directed to decide the said issue afresh after giving opportunity of hearing to KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 4/19 all the parties. The respondent No.1 was directed to implead the Maharashtra State Examination Council, Pune, as respondent in the appeal and it was clarified that this Court had not examined the correctness of findings recorded on the issue as to whether the enquiry against the appellant was conducted as per MEPS Rules. Since the matter was remanded to the School Tribunal, it was directed that the appeal of respondent No.1 shall be decided within four months.

6. It is in pursuance of the said order of remand that the School Tribunal again took up the matter for consideration and allowed the parties to lead evidence on the said issue pertaining to the appointment of respondent No.1 being in terms of section 5 of the MEPS Act. The newly added respondent i.e. the Maharashtra State Examination Council, Pune, was also put to notice and respondent No.1 examined the officials of the said respondent, who appeared before the Tribunal with the original record of documents pertaining to the acquisition of qualifications by respondent No.1. On the basis of the material and evidence that came on record, in pursuance of the said proceedings, by the impugned order, the Tribunal partly allowed the appeal of respondent No.1 in the aforesaid terms. The said order of the School Tribunal is subject matter of challenge in the present writ petition.

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7. Mr. J.M.Gandhi, learned counsel appearing for the petitioners, submitted that respondent No.1 had failed to produce original documents pertaining to educational qualifications and that the evidence brought on record in terms of the documents produced by the officials of respondent No.4- Maharashtra Sate Examination Council, Pune, was insufficient to prove that respondent No.1 indeed had requisite qualifications when he entered service in the initial stage of his career or even when he was absorbed in petitioner No.4-School on 01/08/1994. It was submitted that when the entry into service of respondent No.1 and subsequent absorption in petitioner No.4-School was based on fraud and in the absence of documents supporting necessary qualifications, respondent No.1 did not deserve to be reinstated in service. It was submitted that, as per the liberty granted by this Court in the order passed in Writ Petition No.496 of 2013, the petitioners were entitled to show that the findings of the School Tribunal in its earlier order regarding the enquiry being vitiated were erroneous and they were entitled to demonstrate that the enquiry was conducted in terms of the MEPS Rules and that no fault could be found with the same. On this basis, it was submitted that a proper charge-sheet and statement of allegations was issued to respondent No.1 and that pursuant to an enquiry conducted in KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 6/19 terms of the Rules 36 and 37 of the MEPS Rules, by adhering to principles of natural justice, findings were rendered by the Enquiry Committee against respondent No.1 leading to the order of termination of service. In the alternative, it was submitted that even if any discrepancy was found in the enquiry conducted against respondent No.1, the petitioners were entitled for grant of liberty to again proceed with the enquiry against respondent No.1, from the stage where the discrepancy was found to be existing by the School Tribunal. It was submitted that respondent No.1 was not at all qualified to hold the post and therefore, the impugned order of the School Tribunal directing reinstatement with continuity of service and back wages was wholly unsustainable. The learned counsel relied upon the judgments of the Hon'ble Supreme Court in the case of Avtar Singh v. Union of India, 2016 (5) ALL MR 916 (S.C.) and Anant R. Kulkarni v. Y.P. Education Society, 2013 (3) ALL MR 952 (S.C.) and judgments of this Court in the case of Bhartiya Seva Acharya Education Society v. School Tribunal, Nagpur, 2014 (4) AlL MR 622, Syed Nasiruddin Karimuddin v. N.B.Shaikh, 2002 (1) ALL MR 193 and Anna Manikrao Pethe v.

Presiding Officer School Tribunal, Amravati and Aurangabad Division, Amravati and others, 1997 (3) Mh.L.J. 697.

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8. On the other hand, Mr. A.D.Mohgaonkar, learned counsel appearing for respondent No.1, submitted that no interference is called for in the impugned order passed by the School Tribunal and that it was in consonance with the position of law applied to the facts of the present case. It was submitted that respondent No.1 was admittedly absorbed and appointed in petitioner No.4-School on 01/08/1994 and that no question was ever raised by the petitioners regarding qualifications of respondent No.1 at that point in time. According to the learned counsel, the trouble really started some time in 2005 when respondent No.1 was made a member of the Trust/Society and he was elected as Joint Secretary thereof. It was because of the rivalry in groups within petitioner No.1-Management that false complaints were made against respondent No.1 and he was repeatedly harassed. It was further submitted that there was no charge-sheet or statement of allegations issued in the present case to respondent No.1 at all, in terms of rule 36 of the MEPS Rules, as there was no resolution of the Management on record regarding issuance of such charge-sheet and statement of allegations. Since the very charge-sheet was a nullity, there was no question of institution of any valid enquiry against respondent No.1 in the present case. It was submitted that even the manner in which KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 8/19 respondent No.1 was suspended, was illegal and unsustainable and that petitioner No.1-Management was interested only in harassing respondent No.1. It was submitted that the allegations regarding fraud against respondent No.1 were absolutely hollow and baseless and that sufficient documentary and oral evidence was brought on record on behalf of respondent No.1 to conclusively prove that he indeed had requisite qualifications when he was initially appointed, as also when he was absorbed and appointed with petitioner No.4-School in the year 1994. On this basis, it was submitted that the writ petition deserved to be dismissed.

9. On the question as to whether the petitioners could be permitted to hold a de novo enquiry from the stage where the enquiry stood vitiated. It was submitted that such a course was not available in the present case because there was sufficient material on record showing that the petitioners had acted maliciously, only with a view to harass respondent No.1. It was submitted that in the absence of any valid charge-sheet and statement of allegations, there was no question that any de novo enquiry to be conducted afresh. In respect of the criminal prosecution launched by a lady against respondent No.1, it was submitted that the prosecution had failed and that respondent No.1 had been acquitted. The said issue was KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 9/19 unnecessarily being raised by the petitioners again only to harass respondent No.1. The learned counsel relied upon judgment of the Hon'ble Supreme Court in the case of Cooper Engineering Ltd. v. P.P.Mundhe, (1975) 2 SCC 661 and the judgment of this Court in the unreported case of Gramin Vikas Sanstha and another v. Presiding Officer, School Tribunal, Chandrapur (judgment and order dated 09/06/2010 passed in Writ Petition No.2187 of 2005).

10. Mr. P.S.Tembhre, learned A.G.P. appeared for respondent Nos.2 and 3 and Shri P.B.Patil, learned counsel appeared for respondent No.4.

11. Heard learned counsel for the parties. Perused the record. It appears that the main allegation sought to be raised by petitioner No.1- Management against respondent No.1 pertains to his alleged lack of qualifications at the time of his initial appointment. The case of petitioner No.1- Management was that when respondent No.1 had failed to prove that he was indeed qualified for being appointed as assistant teacher, the termination of his service could not have been held to be bad and set aside by the School Tribunal. The manner in which the litigation between the parties has proceeded and the impugned judgment and order dated 14/12/2016 has been passed by the KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 10/19 School Tribunal, pursuant to order of remand dated 01/09/2014 passed by this Court, it is found that the controversy revolves around respondent No.1 having requisite qualifications for appointment.

12. In the first instance, it was found by the School Tribunal in its judgment and order dated 05/09/2012 that respondent No.1 had failed to prove that he was appointed in terms of section 5 of the MEPS Act and that he had failed to prove that he had necessary qualifications at the time of his entry in employment. This Court, while remanding the matter to the Tribunal, had recorded that the remand had become necessary as certain documents had come on record, including mark-sheet of respondent No.1, showing that he had cleared D.Ed. Examination in July, 1986 itself and that it was necessary for the School Tribunal to examine the said document to decide the issue about qualifications held by respondent No.1 afresh in the light of the aforesaid documents. It was also made clear that the evidence on the other issue pertaining to the enquiry being vitiated was not examined by this Court and that the parties could raise their challenge to the same at the appropriate stage. This Court had also directed respondent No.1 to implead respondent No.4 herein i.e. the Maharashtra State Examination Council, Pune, as a party before the School Tribunal so that the documents that had KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 11/19 come on record could be verified and the evidence could be led with regard to the same.

13. Therefore, upon remand to the School Tribunal, the parties had sufficient opportunity to lead oral and documentary evidence on the main allegation made against respondent No.1 that he was not qualified when he entered service. A perusal of the impugned judgment and order passed by the School Tribunal shows that two witnesses were produced in support of the documents placed on record regarding qualifications obtained by respondent No.1. These witnesses filed and placed on record original registers pertaining to the result and mark-sheet of D.Ed. Examination of respondent No.1. Thus, documents and the oral evidence tendered by the said two witnesses was tested in detailed cross-examination on behalf of the petitioners. There is no complaint that there was any lack of opportunity for the parties to lead oral and documentary evidence before the School Tribunal.

14. After the said oral and documentary evidence came on record before the School Tribunal, the same was examined in detail by the School Tribunal, wherein the answers given by the said witnesses in cross-examination on behalf of the petitioners were also considered and the arguments KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 12/19 raised on behalf of the parties were considered on merits. The emphasis of the petitioners was on alleged manipulation of the marks obtained by respondent No.1 pertaining to qualification of D.Ed. In paragraphs 14 to 21 the School Tribunal examined in great detail, the oral and documentary evidence on record on the aforesaid issue of qualifications of respondent No.1 for appointment as assistant teacher. Upon examining the oral and documentary evidence on record in that respect and by making minute observations regarding the pages of the original registers concerning result of respondent No.1 in the D.Ed. Examination, the School Tribunal gave findings of facts in favour of respondent No.1. It was found that there had been no irregularity in the result and certificate of D.Ed. Examination of respondent No.1. This Court has perused the said examination of evidence and findings rendered by the School Tribunal and it is found that the manner of appreciation of evidence by the School Tribunal cannot be said to be erroneous. Therefore, the findings rendered cannot be said to be perverse. While exercising writ jurisdiction, this Court is required to examine the findings rendered by the School Tribunal on the basis of material on record and to see if there has been any grave mistake committed by the School Tribunal while rendering findings. It is found that the findings of the School Tribunal are based on KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 13/19 proper appreciation of the evidence on record and the petitioners have failed to show any irregularity or perversity in the findings rendered by the School Tribunal. Ample opportunity was granted to the petitioners to place on record material to contradict the claims of respondent No.1 or to show that the material on record was not believable, but they failed to do so. The evidence produced on behalf of respondent No.1 was found to be sufficient by the School Tribunal to prove that he indeed held the requisite qualification at the time of entry in service and this Court does not find any error committed by the School Tribunal in that regard.

15. This Court finds that by merely alleging "fraud", the petitioners cannot succeed in this writ petition. The allegation that the documents produced by respondent No.1 were fraudulent was not at all supported by petitioner No.1-Management in any manner and, therefore, no fault can be found with the findings rendered by the School Tribunal in favour of respondent No.1 on the said aspect.

16. As regards the contention of petitioner No.1-Management that it was entitled to conduct a de novo enquiry from the stage that the enquiry was found to be vitiated, in the present case this Court finds that petitioner No.1-Management is not entitled to grant of any such relief. The material on KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 14/19 record shows that petitioner No.1-Management did not seem to have any complaint against respondent No.1 from 01/08/1994 when he was absorbed in petitioner No.4-School till the year 2005 when disputes arose, as respondent No.1 became member of petitioner No.1-Trust/Society and he was elected as Joint Secretary thereof. The whole initiation of action against respondent No.1 appears to have its inception in the disputes that arose some time in the year 2005. It was after about 11 years of service of respondent No.1 in petitioner No.4-School, that for the first time, it dawned upon petitioner No.1- Management that respondent No.1 was not qualified at the initial stage of his entry into service. The fact that petitioner No.4-School was the fourth school in which respondent No.1 was working, was also crucial and it had a bearing on the facts of the present case. The manner in which the events have unfolded in the present case after disputes arose when respondent No.1 became member of petitioner No.1-Trust/Society, gives a clear indication that petitioner No.1 suddenly initiated action against respondent No.1 due to disputes and with malicious intent. It appears that the whole intention of petitioner No.1-Management was to harass respondent No.1 and throw him out of employment. The stand of respondent No.1 was that the original documents pertaining to his qualifications were in the custody of petitioner KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 15/19 No.1-Management when he was absorbed in petitioner No.4-School in the year 1994. The documents produced by respondent No.1 were labelled as fraudulent and fake by petitioner No.1- Management and the whole basis of taking action against respondent No.1 was that he was not qualified at the time when he entered employment in the first school. The facts of the present case show that the said charge of the petitioners that respondent No.1 not qualified was trumped up by petitioner No.1-Management, after disputes arose with respondent No.1 and with a view to harass him.

17. On the parties being granted opportunity to specifically lead oral and documentary evidence on record pertaining to the main allegation of lack of qualification against respondent No.1, a detailed exercise was undertaken before the school Tribunal wherein, it was found on the basis of original registers of result and marks memo produced from the office of respondent No.4-Council that respondent No.1 was indeed holding the requisite qualification at the time of entry into employment. The learned counsel appearing for the petitioners has not been able to demonstrate that petitioner No.1-Management was not given fair opportunity to lead evidence to support its case against respondent No.1 or that sufficient opportunity was not granted KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 16/19 to cross-examine the witnesses who appeared on behalf of respondent No.1 on the question of requisite qualifications. Therefore, the main allegation against respondent No.1 stood refuted and the petitioners have failed to show that the impugned judgment and order passed by the School Tribunal was erroneous on findings on the said aspect.

18. In this light, it cannot lie in the mouth of petitioner No.1-Management that it should be permitted to hold a de novo enquiry from the stage when it was found to be vitiated, having already led evidence and placed material on record before the School Tribunal as regards the main allegation of lack of educational qualification against respondent No.1. The petitioners have not been able to show how the contentions raised on behalf of respondent No.1 could be said to be wrong with regard to the issuance of charge-sheet and statement of allegations itself being null and void and not in terms of Rule 36 of the MEPS Rules. It has been pointed out on behalf of respondent No.1 that the alleged charge-sheet and statement of allegations, upon which reliance was placed by petitioner No.1- Management, was issued by the headmaster and not by the authorized person as per the requirement of the MEPS Rules. The very initiation of action against respondent No.1 was rendered null and KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 17/19 void. The only submission made on behalf of petitioner No.1-Management in this context was that it should be permitted to issue a fresh charge- sheet and statement of allegations. This cannot be permitted, particularly in view of the fact that this Court finds that there is sufficient material on record to hold that petitioner No.1-Management has acted deliberately and maliciously to harass respondent No.1. Even otherwise, a bare perusal of the alleged charge-sheet and statement of allegations levelled against respondent No.1 shows that the entire emphasis was on lack of qualification of respondent No.1 when he entered service. That aspect has been found against petitioner No.1- Management and it has been dealt with exhaustively in the impugned judgment and order of the School Tribunal. The other allegation also, pertaining to a prosecution against respondent No.1 involving a lady, is vague and in any case, it has come on record that respondent No.1 was acquitted of the charges and that the allegation was made against him due to some private dispute between him and the aforesaid lady. Even otherwise, the said lady had nothing to do with either petitioner No.4- school or petitioner No.1-Management. All the other allegations stated in the said document issued by the headmaster are of a very general and vague nature.

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19. In that light, reliance placed by the learned counsel appearing for respondent No.1 on judgment in the case of Gramin Vikas Sanstha v. Presiding Officer, School Tribunal (supra) is justified, wherein this Court has found that it is not necessary to grant liberty to the Management to initiate a de novo or fresh enquiry against the employee where it is found that the Management has failed to support its allegations made against the employee even if the allegations are of grave nature. It has been laid down that the Court can certainly take notice of the approach and attitude of the Management and if the Management appears to be keen to remove the employee by hook or crook, it would not be necessary for the Court to grant liberty to such a Management to hold de novo enquiry. Therefore, the alternative contention raised on behalf of petitioner No.1-Management deserves to be rejected.

20. There can be no quarrel with the proposition laid down in the judgments relied upon by petitioner No.1-Management that liberty for conducting a de novo enquiry could be granted but, the said cases are clearly distinguishable on facts, as this Court finds that in the present case that petitioner No.1-Management has chosen to initiate action against respondent No.1 only with a view to harass him by raising trumped up charges. The judgment of the Hon'ble Supreme Court in the case KHUNTE ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 01:12:12 ::: wp733.17.odt 19/19 of Avtar Singh v. Union of India (supra) is also distinguishable because in the said case appointment was procured through fraud and by submission of false information but, in the present case, it is found on facts that respondent No.1 was indeed qualified when he entered into employment and that the question of his not having requisite qualification was deliberately raised by petitioner No.1-Management after 11 long years of service, when disputes arose between petitioner No.1- Management and respondent No.1 thereby showing that the entire action of petitioner No.1- Management was malicious and unsustainable.

21. In the light of the above, this Court finds that the present writ petition is without any merit and it deserves to be dismissed. Accordingly the writ petition is dismissed and the impugned order passed by the School Tribunal is confirmed.

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