Bombay High Court
Andheri Education Society Through ... vs Smt. Sherly Paul And Ors on 23 August, 2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6199 OF 2016
1. Andheri Education Society, )
Through its Secretary, )
Having office at S.V. Road, Andheri (W) )
Mumbai - 400 058. )
2. Seth M.A. High School )
Trhuogh the In-Charge Headmistress )
Smt.Lidwin Pinto, age 48 years,
ig )
S.V. Road, Andheri (W), )
Mumbai- 400 058. ) .. Petitioners
Versus
1. Smt.Sherly Paul )
Plot No.2, Hill View Apartment, )
Opposite I.I.T. Main Gate, Powai, )
Mumbai - 400 076. )
2. The Education Officer (West Zone) )
Ismail Yousuf College Compound, )
Jogeshwari (E), )
Mumbai - 400 060. )
3. Deputy Director of Education )
Office of Deputy Director of Education )
Charni Road, Mumbai - 400 004. )
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4. State of Maharashtra )
Through the Secretary )
Education Department, Annex Building )
Mantralaya, Mumbai - 400 032. ) .. Respondents
---
Mr.Mihir Desai, Senior Advocate a/w Ms.Bharati Desai a/w Mr.Sariputta
Sarnath i/by Mr.Swaraj S. Jadhav for the petitioners.
Ms.Sherly Paul, respondent no.1 in-person present.
Mr.A.R.Mektari, AGP for the respondent nos.2 to 4.
---
CORAM : R.D. DHANUKA
RESERVED ON : 11th August 2016
Judgment :-
PRONOUNCED ON : 23rd August 2016
. By this petition filed under Articles 226 and 227 of the
Constitution of India, the petitioners have prayed for a writ of certiorari
or any other writ, order or direction in the nature of writ of certiorari for
quashing and setting aside the judgment and order dated 16th October
2015 passed by the learned Presiding Officer, School Tribunal, Mumbai
thereby allowing the appeal filed by the respondent no.1 under Section 9
of the Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (for short "the said MEPS Act") and setting aside
the order of termination dated 14th July 2014. By the said judgment and
order, the petitioners are directed to reinstate the respondent no.1 in the
petitioner no.2 school on her original post of Headmistress with
continuity of service and back wages from the date of termination till
date of reinstatement within three months from the date of the said order.
Some of the relevant facts for the purpose of deciding this petition are as
under :-
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2. Prior to the date of appointment of the respondent no.1 as
Headmistress in the petitioner no.2 school, she was serving on the post
of Assistant Teacher in a recognised unaided school by name St.Dominic
High School, Andheri. In pursuance to an advertisement issued by the
petitioner no.2 school for the permanent vacant post of Headmaster, the
respondent no.1 applied for the said post. The petitioners appointed the
respondent no.1 as Headmistress in the petitioner no.2 school w.e.f. 1st
October 2008. It is the case of the respondent no.1 that while in service
she had been given appreciation letters for her satisfactory work in the
school and was not issued even a single memo or show cause notice.
3. It is the case of the petitioners that from the academic year
2012-13, the petitioners were in process of raising the fees for the school.
During one of the meetings between the petitioners and the members of
the Parents Teacher Association, some of the members of the said
association became violent and verbally abused and physically
manhandled some of the teachers of the petitioner no.2 - school. It is the
case of the petitioners that petitioner no.1 Trust, vide its letter dated 28 th
September 2011, asked the respondent no.1 to narrate what happened in
the said meeting dated 26th September 2011. The respondent no.1 vide
her reply dated 11th September 2012 gave evasive answers. It is the case
of the petitioners that the academic year 2012-13 concluded with the
conclusion of term examination in the month of April 2013. In the
middle of April 2013, the respondent no.1 circulated a notice in the
school stating that re-test would be conducted for the students of standard
IX who had failed to clear the final examination. It is the case of the
petitioners that the said notice issued by the respondent no.1 was in
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violation of Secondary School Code, 1986 and such students were
illegally promoted to standard X. On 27th April 2013, the petitioners
sought explanation from the respondent no.1 for conducting such
examination without prior permission. According to the petitioner, the
respondent no.1 never clarified as to why she conducted such re-test and
granted promotion to the students from standard IX to standard X despite
several reminders.
4. On 18th December 2013, the petitioners received a letter
dated 17th December 2013 from the respondent no.1 informing that F.I.R.
was registered with D. N. Nagar Police Station against Mr. Yogesh Yadav,
one of the Assistant Teachers teaching in the petitioner no.2 school. It is
the case of the petitioners that on 21st December 2013, the petitioners
received a complaint signed by 37 teachers of the petitioner no.2 school
alleging that the said F.I.R. lodged against Mr. Yogesh Yadav was based
on false complaint made by the respondent no.1 and alleging that the
respondent no.1 had been threatening other teachers with dire
consequences if they did not obey her.
5. On 24th December 2013, the petitioners addressed a letter to
the respondent no.1 appreciating the steps of the respondent no.1 but
asked her as to why she kept the management in dark about such heinous
act happening in the school premises. It was the case of the petitioners
that on 3rd January 2013, the petitioners once again received a detailed
complaint signed by the teaching and non-teaching staff against the
alleged arbitrary action and conduct of the respondent no.1 alleging
omission of duty on her part.
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6. On 27th January 2014, the petitioners issued statement of
allegations to the respondent no.1 containing 10 charges. The respondent
no.1 filed a reply to the said statement of allegations. The petitioners
issued a charge-sheet with the letter of suspension of services of the
respondent no.1 on 20th February 2014. The petitioners in its meetings,
decided to constitute an inquiry committee against the respondent no.1 as
per Rule 36 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Rules, 1981 (for short "the said
MEPS Rules"). The said inquiry committed consisted of President of the
petitioner no.1 Trust i.e. Smt.Dr.Leena Dalal as a Convenor, State
Awardee Teacher Shri Ramakant Pandey and nominee of the respondent
no.1 Shri V. V. Barge. During the pendency of the said enquiry
proceedings, the respondent no.1 herein approached this Court on 1st
August 2014 thereby challenging her suspension and also the proceedings
of the inquiry committee. By an order dated 1 st August 2014 passed by
this Court, the respondent no.1 was directed to approach the appropriate
forum as the enquiry proceedings were over and her services were
terminated.
7. There were 13 meetings held by the Enquiry Committee.
Two witnesses were examined by the petitioners. The respondent no.1
entered the witness box. The Enquiry committee submitted a report and
tendered various findings against the respondent no.1 holding her guilty
of all charges and recommended her termination on 14th July 2014. The
petitioners accepted the recommendations made by the Enquiry
Committee and terminated the service of the respondent no.1 vide letter
dated 14th July 2014.
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8. Being aggrieved by the said order of termination issued by
the management, the respondent no.1 filed an appeal before the School
Tribunal (40 of 2014). The said appeal was resisted by the petitioners by
filing a written statement before the School Tribunal. By a Judgment and
Order dated 16th October 2015, the School Tribunal allowed the said
appeal and set aside the impugned order of termination dated 14 th July
2014 and directed the petitioners to reinstate the respondent no.1 in the
petitioner no.2 school on her original post of Headmistress with
continuity of service and awarded back wages from the date of
termination till the date of reinstatement within three months from the
date of the said order. The Judgment and Order dated 16th October 2015
passed by the School Tribunal is impugned by the petitioners in this writ
petition.
9. Though the present writ petition was adjourned on the
ground of the parties negotiating for settlement, the matter could not be
settled. This Court has thus heard the learned senior counsel for the
petitioners, the respondent no.1 who appeared in-person and learned
AGP who appeared for the Education Officer and Deputy Director of
Education.
10. Mr.Desai, learned senior counsel appearing for the
petitioners invited my attention to the statement of allegations issued by
the petitioner no.1 Trust and also the charge-sheet containing 10 charges.
He also invited my attention to the statement recorded by the D. N. Nagar
Police Station. Mumbai. It is submitted that though the respondent no.1
was aware of the alleged act of sexual harassment by Mr. Yogesh Yadav
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in the school premises in March 2013, she had filed F.I.R. only in the
month of December 2013 without informing the petitioner no.1 and had
kept the management in dark since March 2013. He submits that if the
respondent no.1 would have informed the petitioner no.1 about such
alleged incident immediately, the petitioner no.1 would have taken an
early action and would have taken steps to verify the complaint made by
the students and helped such victim student through proper counseling by
other appropriate methods. He submits that the petitioner no.1 was not
against the respondent no.1 for registering the F.I.R. against the said
Mr.Yogesh Yadav but had issued a charge-sheet against the respondent
no.1 since there was abdication of duties by not informing the
petitioner no.1 till December 2013 and for not taking any action against
the alleged culprit for such a long time exposing the students for further
sexual harassment.
11. It is submitted by the learned senior counsel for the
petitioners that the School Tribunal has rendered a finding that as per the
provisions of the Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act'), the respondent no.1 was immuned from any
action against her for filing such F.I.R. The School Tribunal failed to
appreciate that the charges against the respondent no.1 were of abdication
of duties for not informing the management about entire events of alleged
sexual harassment and for not registering the F.I.R. against the alleged
culprit.
12. It is submitted by the learned senior counsel for the
petitioners that out of 10 charges leveled against the respondent no.1, the
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petitioners had basically pressed 3 charges i.e. charge nos.(i), (ii) and (iv).
The learned senior counsel invited my attention to the affidavit-in-lieu of
examination-in-chief filed by the first witness examined by the
management i.e. Ms.Lindwin Pinto and her cross-examination conducted
by the respondent no.1. It is submitted by the learned senior counsel that
the School Tribunal has erroneously disbelieved the evidence of two
witnesses examined by the petitioner no.1 on the ground that some of the
questions were not replied by those two witnesses on the ground that
those questions were not related to what was stated by them in the
examination-in-chief.
13. It is submitted by the learned senior counsel that the School
Tribunal has totally misconstrued the charge nos.1 to 3 by considering
those charges for filing false F.I.R. and erroneously relied upon Sections
21, 21 (2) of the POCSO Act. He submits that those charges were leveled
against the respondent no.1 for keeping quite for almost 9 months, despite
her knowledge about the alleged offence of sexual harassment of the
female students of standard X which was a very grave and serious
offence. He submits that the respondent no.1 had acted in contravention
of the provisions of the POCSO Act and MEPS Rules. He submits that
the petitioners had proved beyond reasonable doubt all three charges and
thus the School Tribunal could not have granted any relief in favour of
the respondent no.1.
14. Learned senior counsel for the petitioners submits that the
respondent no.1 was holding the position of Trust being Headmistress
in the petitioner no.2 school, the School Tribunal ought not to have
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granted relief of reinstatement with continuity of service and at the most
could have considered the compensation in lieu of reinstatement.
15. In support of this submission, learned senior counsel placed
reliance on the judgment of the Supreme Court in the case of O.P.
Bhandari Vs.Indian Tourism Development Corporation Ltd. & Ors.,
reported in (1986) 4 SCC 337 and in particular paragraphs 7 to 10
thereof. He submits that the School Tribunal could have at most allowed
the compensation equivalent to 3.33 years' salary including the
allowances as admissible as reasonable amount on the basis of last pay
and allowances drawn by the employee in lieu of reinstatement.
Reliance is also placed on the judgment of the Supreme Court in the
case of Hindustan Petroleum Corporation Ltd. Vs. Yeshwant Redkar
& Anr., reported in 2004 (5) B.C.R. 325 and in particular paragraphs
30 and 31 thereof.
16. Smt.Paul, respondent no.1 who appeared in-person submits
that instead of appreciating the efforts taken by the respondent no.1 in
taking the appropriate steps against Mr.Yogesh Yadav by filing F.I.R.
and from stopping such heinous crime in the premises of the school
and thereby protecting the school girls, the petitioners with malafide
intention have issued statement of allegations and charge-sheet
containing false allegations. She submits that the entire enquiry
proceedings initiated by the petitioners against her were totally malafide.
She submits that the enquiry proceedings conducted by the Enquiry
Committee were conducted illegally and unfairly. She placed reliance
on various averments made by her in the affidavit-in-reply filed in this
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writ petition. She also placed reliance on various provisions of the said
POCSO Act. She submits that though the petitioners had examined two
witnesses to prove the three charges leveled against her, the cross-
examination of the first witness Ms.Lindwin Pinto was abruptly
discontinued by the management. She submits that both the witnesses
examined by the petitioners evaded giving reply to most of the questions
in their cross-examination. She submits that the School Tribunal has
thus rightly disbelieved the evidence of such witnesses in the impugned
order.
17.
It is submitted by the respondent no.1 that she had explained
as to why the complaint against Mr.Yogesh Yadav was not filed
immediately. It is submitted that though some of the students had
approached her in the month of March 2013, those students were
frightened and had requested her to keep silence about the sexual
harassment meted out because they were terrified about the
consequences, both personal and academic, in case such complaint
would have been made public. Those students were 14-15 year old girls
and were concerned about their reputation and the social consequences.
The students had requested her to keep an eye on Mr.Yogesh Yadav.
She accordingly kept a check on the safety of the students personally
as well as through the Vice Principal and class teachers. She submits
that though she had repeatedly requested the petitioners for CCTV
footage, the petitioners deliberately ignored the said request made by
her. In these circumstances, she waited till December 2013 to file a
complaint against Mr.Yogesh Yadav.
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18. It is submitted that when the next batch of students were
willing to complain against Mr.Yogesh Yadav and came forward with
their class teachers, she filed a complaint with the concerned police
station. She submits that it was her legal responsibility to report sexual
abuse under Sections 21, 21(2) of the POCSO Act and thus in the good
faith to protect the best interest of the girl students, she filed a complaint
against Mr.Yogesh Yadav with the concerned police station. She submits
that the Special Court while granting bail to the said Mr.Yogesh Yadav
had noted that there was a prima facie case against him. She submits
that the petitioners did not lead
ig any evidence regarding any other
charges against the respondent no.1 i.e. about her alleged misconduct or
other charges.
19. It is submitted by the respondent no.1 that the School
Tribunal has passed a detailed judgment and order and has rendered
various findings of facts which cannot be interfered with by this Court.
She submits that this petition filed by the management is an additional
attempt to harass her and thus the same shall be dismissed by this Court.
20. Mr.Desai, learned senior counsel for the petitioners in
rejoinder submits that the enquiry was fair and proper and thus the
School Tribunal ought not to have interfered with the findings rendered
by the Enquiry Committee and with the order of termination passed by
the management terminating the services of the respondent no.1. He
submits that several complaints were received by the management
against misconduct committed by the respondent no.1 and thus action
taken by the petitioners of terminating her services was justified.
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REASONS AND CONCLUSIONS:-
21. The management had though issued a charge-sheet
containing 10 charges against the respondent no.1, learned senior counsel
fairly stated that the petitioners had pressed only three charges before
the School Tribunal and accordingly addressed this Court on those
charges namely (i), (ii) and (iv). The charges (i), (ii) and (iv) are
extracted as under :-
(i) You filed F.I.R. against Mr.Yogesh Yadav (Assistant Teacher) in
D.N. Nagar Police Station without intimating the management
and kept the management in the dark about the incidents of
sexual harassment for 9 months.
(ii) You refused to produce the proofs and documents about the
incidents of sexual harassment this act of yours amounts to
gross misconduct.
(iv) You promoted 144 pupils of Std.IX by violating promotion Rules
mentioned in S.S.Code, 1986, Rules 27.4 (Annexure-7) in April
2013.
22. There is no dispute that though the petitioners had given a
list of 12 witnesses and had proposed to examine 12 witnesses before
the Enquiry Committee, the petitioners examined only two witnesses
who were cross-examined by the respondent no.1 before the Enquiry
Committee.
23. A perusal of the evidence of the first witness of the
management i.e. Ms.Lindwin Pinto who was acting Headmistress in the
school indicates that she was appointed as an Assistant Teacher in the
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year 1989 in the petitioner no.2 school and was acting Headmistress
while she gave evidence before the Enquiry Committee. Though in her
examination-in-chief, she admitted that on 18th December 2013, the
police came to the school premises at 12.40 p.m. and arrested Mr.Yogesh
Yadav, one of the assistant teacher of the school and till then she did not
know anything about the conduct of Mr.Yogesh Yadav and hence was
shocked to see the incident, however, in her cross-examination, the said
witness refused to answer any questions regarding the conduct of
Mr.Yogesh Yadav on the ground that she was not examined by the
management on the issue of incidence of Mr.Yogesh Yadav in the school
and thus she was not answerable to any questions relating to the said
incident regarding Mr.Yogesh Yadav.
24. A perusal of the evidence recorded by the Enquiry
Committee of the said witness clearly indicates that the respondent no.1
was not permitted thereafter to cross-examine the said witness on the
ground that the respondent no.1 could ask the questions and cross-
examine only on the issues regarding which she was examined by the
management as a witness. Various rulings were given by the Enquiry
Committee in this regard while recording of the evidence of the said
witness Ms.Lindwin Pinto. During cross-examination of the said witness,
she stressed that she was a witness only about the re-test of standard IX
and she would answer the questions only relating to those allegations
and nothing else. The Convenor of the Enquiry Committee made it clear
that Ms.Lindwin Pinto should be cross-examined only on the statements
given by her in examination-in-chief and if the respondent no.1 wanted
to ask anything else, she was at liberty to call the said witness as her
witness.
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25. The State Awardee Teacher who was a member of the said
Enquiry Committee also conveyed that the cross-examination was to be
taken only on the statements of the witnesses and not outside such
statements. Though the nominee of the respondent no.1 in the Enquiry
Committee raised an issue that the respondent no.1 should be allowed to
ask any questions about the incidence of Mr.Yogesh Yadav, the Convenor
of the Enquiry Committee disagreed and said that the cross-examination
was to be based only on the examination-in-chief. The respondent no.1
was at liberty to produce her witnesses for whatever she wanted to
prove. The State Awardee Teacher gave a ruling that the respondent no.1
was at liberty to ask any questions but it had to be within the framework
of evidence given by the said first witness of the management i.e. what
was stated by her in the examination-in-chief.
26. A perusal of the report submitted by the Enquiry Committee,
in so far as the charge no.(i) and charge no.(ii) are concerned, indicates
that though the Enquiry Committee found that most of the questions
asked to the said first witness of the management were not replied on
the ground that such questions could not be asked to her and cross-
examination could be restricted to what was stated by her in her
examination-in-chief, the said committee considered the evidence of the
first witness of the management and totally ignored the evidence led by
the respondent no.1 who had submitted a complaint made by 40 students
out of 52 students in writing about their feelings and behaviour of
Mr.Yogesh Yadav with the girl students.
27. In so far as the second witness examined by the management
is concerned, he was in-charge for standard VII and VIII, but was
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teaching algebra in standard IX and was Supervisor in the petitioner no.2
school. In his examination-in-chief, he deposed that he had come to
know about the arrest of Mr.Yogesh Yadav after he was taken away by
the police at 12.40 p.m. on 18 th December 2013. Though he was a
Supervisor in the petitioner no.2 school, he was not aware of incidence
of Mr.Yogesh Yadav. His examination-in-chief was also identical to the
examination-in-chief of the first witness examined by the management.
In his cross-examination, when he was asked the questions about
Mr.Yogesh Yadav, the Convenor of the Enquiry Committee and the State
Awardee Teacher once again gave various rulings to the effect that the
said witness was also not bound to answer any questions relating to
the incidence of Mr.Yogesh Yadav since this examination-in-chief was
also not pertaining to this issue. The respondent no.1 was accordingly not
allowed to pursue the cross-examination on that issue.
28. A perusal of the report of the Enquiry Committee, in so far
as the evidence of the second witness of the management is concerned,
clearly indicates that though the said witness in his examination-in-
chief had referred to the incidence of arrest of the said Mr.Yogesh Yadav,
in the cross-examination, he refused to answer any questions relating to
the said incident. Two members of the Enquiry Committee did not allow
the respondent no.1 to pursue the cross-examination on the incidence of
Mr.Yogesh Yadav. The Enquiry Committee, however, totally ignored the
evidence led by the respondent no.1 and considered the evidence of both
the witnesses who had refused to give any answer on the incidence of
Mr.Yogesh Yadav though had referred to such incident in their
examination-in-chief. The Enquiry Committee has rendered various
findings based on such evidence of the two witnesses of the petitioners.
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29. A perusal of the impugned order passed by the School
Tribunal on charge nos.(i) and (ii) indicates that the School Tribunal had
framed four points for determination. In so far as the issue as to whether
the constitution of the Enquiry Committee was legal and proper, the
School Tribunal has rendered a finding on that issue in affirmative. In
so far as the issue as to whether the findings recorded by the Enquiry
Committee members were perverse or not, the School Tribunal has
answered the said issue in affirmative. The School Tribunal has also
answered the issue as to 'whether the termination order dated 14 th July
2014 was liable to be set aside' in affirmative.
30. The School Tribunal has held that though the management
had leveled 10 charges against the respondent no.1, the management
had only led evidence on about 2-3 charges and without any evidence
either oral or documentary, the Enquiry Committee had given findings
on each and every charge in their report.
31. After perusing the entire evidence recorded by the Enquiry
Committee, the School Tribunal has held that the Convenor of the
Enquiry Committee had given his opinion during the course of
recording the evidence that the first witness examined by the management
could be cross-examined only on the statements given in the examination-
in-chief and if the respondent no.1 wanted to ask anything else, she
was at liberty to call the said witness as her witness and could ask her
those questions at that time. The School Tribunal has gone through the
entire evidence and has highlighted some of the crucial part of the
evidence led by those two witnesses who repeatedly refused to answer
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the questions asked in the cross-examination by the respondent no.1
contending that they were not answerable to those questions as the
same were not related to their examination-in-chief.
32. After considering the evidence of both the witnesses, the
School Tribunal was of the view that Ms.Lindwin Pinto, first witness of
the management had flatly refused to answer to the questions relating to
the charges by stating that these questions were irrelevant to her
examination-in-chief. The Convenor also gave verdict that the respondent
no.1 was only permitted to cross-examine the witnesses regarding the
statements given in the examination-in-chief and was not allowed to ask
the question to the witnesses regarding the charges leveled against her.
33. Similarly in respect of the charge no.(iv), the first witness
examined by the management refused to answer the questions relating to
the said charge by stating that since such questions were not relating to
her examination-in-chief, she was not answerable to those questions.
34. The School Tribunal held that the respondent no.1 was not
permitted to ask the questions relating to the charges leveled against her
by the management. A perusal of the impugned order passed by the
School Tribunal indicates that the School Tribunal has very minutely
examined the evidence recorded by the Enquiry Committee and has
rendered finding of fact that the none of the witnesses examined by the
management replied to the questions asked on the specific charges
leveled against the respondent no.1 by the management and thus the
charges leveled against the respondent no.1 were not proved. In my view,
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non-replying the questions relating to charges in the cross-examination
by the witnesses examined by the management and rulings given by
the Enquiry Committee not to permit the respondent no.1 to ask the
questions on relevant charges seriously affected the rights of the
respondent no.1 and was in violation of principles of natural justice.
35. In so far as the charge no.(iv) is concerned, the School
Tribunal has rendered a finding of fact that both these witnesses were
holding the post of Assistant Headmistress and Supervisor respectively
in the petitioner no.2 school and were equally responsible for conducting
re-examination and promotion of the students of standard IX. The
second witness examined by the management admitted in the cross-
examination that there was an existence of government rule relating to
the promotion of the students of standard IX.
36. It is held by the School Tribunal that except the charge no.
(iv), there was no evidence produced by the management in respect of
the re-examination of standard IX. The management had not led any
evidence in so far as the charge no.(iv) is concerned. The witnesses
examined by the management admitted that there was a government rule
to promote the students to standard IX.
37. In my view, the learned senior counsel could not point out
any infirmity in the impugned order passed by the School Tribunal.
Learned senior counsel could not convince this Court that the witnesses
who were examined by the management could refuse to give answer to
the questions in the cross-examination which were relating to the charges
leveled against the respondent no.1 or could refuse to those questions
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simply on the ground that those questions were not relating to the
deposition made in their respective examination-in-chief. It is surprising
that the management had examined such witnesses to prove serious
charges against the respondent no.1 who were not replying to the relevant
questions relating to the serious charges on false pretext, obviously
to avoid any answer which would assist the case of the respondent no.1.
Though the learned Convenor and the State awardee teacher were not
aware of their role, duties and obligations while conducting an enquiry
and had acted totally contrary to the basic principles of law, justice and
good conscience and in most irresponsible manner, the management
accepted such perverse recommendation of such Enquiry Committee
without application of mind and took a drastic action of termination of
the services of the respondent no.1.
38. In so far as the judgment of the Supreme Court in the case
of O.P. Bhandari Vs.Indian Tourism Development Corporation Ltd.
& Ors. (supra) relied upon by the learned senior counsel for the
petitioners is concerned, Supreme Court in the said judgment has held
that it was in public interest that the public sector undertakings or their
Board of Directors are not compelled and obliged to entrust their
management to personnel in whom, on reasonable grounds, they have no
trust or faith and with whom they are in a bonafide manner unable to
function harmoniously as a team working arm-in-arm with success in the
following three-dimensional sense as their common goal i.e. (i) maximum
production for the benefit of the community, (ii) social justice for
workers, consumers and the people, and (iii) reasonable return on the
public funds invested in the undertaking. Supreme Court considered in
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the facts of that case that the Trade Union of the employees had lodged a
strong protest and even held out a threat of strike, in the context of some
acts of the employees and such unrest among the workmen was likely to
have a prejudicial effect on the working of the undertaking which would
prima facie be detrimental to the larger National interest, not to speak of
detriment to the interest of concerned undertaking.
39. Supreme Court was of the view that the compensation
equivalent to 3.33 years' salary (including allowances as admissible) on
the basis of the last pay and allowances drawn by the employee would be
a reasonable amount to award in lieu of reinstatement. Supreme Court
accordingly directed the management to reinstate the employee with
full back wages (including usual allowances) or at its option to pay to the
employee salary including usual allowances for the period commencing
from the date of termination of his service under the impugned order till
the date of payment of compensation equivalent to 3.33 years' salary
including usual allowances to him, provident fund amount and retirement
benefits within three months from the date of the said judgment.
40. Division Bench of this Court in the case of Hindustan
Petroleum Corporation Ltd. Vs. Yeshwant Redkar & Anr. (supra) has
adverted to the judgment of the Supreme Court in the case of O.P.
Bhandari Vs.Indian Tourism Development Corporation Ltd. & Ors.
(supra) in case of an Acting Deputy Manager working with the public
sector company i.e. Hindustan Petroleum Corporation Ltd. and directed
the management to pay compensation to the said employee equivalent to
3.33 years' last drawn salary.
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41. In my view, none of the aforesaid judgments relied upon
by the learned senior counsel for the petitioners in support of the
submission that in view of strained relations between the petitioners and
the respondent no.1 and the petitioners having lost faith in the respondent
no.1, the School Tribunal could not have granted her reinstatement with
continuity of service but ought to have granted compensation as awarded
by the Supreme Court equivalent to 3.33 years' last drawn salary are
applicable to the facts of this case. Supreme Court had considered the
dispute between the employee holding senior managerial post in a
public sector undertaking in whom the public sector company had lost
faith and there was a threat of strike by the workers if the said employee
would have been continued in the employment. In this case, the
respondent no.1 had taken steps in lodging the complaint against the
Assistant Teacher Mr.Yogesh Yadav whose activities were prima facie
prejudicial to the interest of the Institution and against the girl students.
In my view, instead of appreciating the efforts taken by the respondent
no.1 to lodge a complaint against the Assistant Teacher against whom
the serious allegations were made by the girl students, the management
had taken drastic steps against her and had terminated her services.
42. The School Tribunal has rightly rendered various findings
of facts and has rightly set aside the order of termination passed by the
petitioner no.1 against the respondent no.1. In my view, the formula
suggested by Mr.Desai, learned senior counsel for the petitioners for
payment of lump-sum amount of compensation equivalent to 3.33 years'
last drawn salary to the respondent no.1 in lieu of reinstatement cannot
be made applicable in the facts and circumstances of this case and is
rightly not acceptable by the respondent no.1.
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43. In my view, the respondent no.1 had satisfactorily explained
the delay, if any, in lodging the complaint against Mr.Yogesh Yadav. It
was her case that several girl students who were minor had brought to her
notice about various incidents of alleged misbehaviour of Mr.Yogesh
Yadav with a request not to disclose their names with a view to save their
reputation. In these circumstances, in my view, the respondent no.1 could
not be held responsible for not lodging the complaint against the said
Mr.Yogesh Yadav immediately upon receiving such complaint from the
girl students. I am inclined to accept this justification given by the
respondent no.1.
44. I am not inclined to accept the submission of the learned
senior counsel for the petitioners that the members of the management
and other teachers of the school were not aware of the incident having
taken place in the premises of the school for last 9 months. In my view,
the findings recorded by the School Tribunal are based on the evidence
led by the respondent no.1 and has rightly not accepted the evidence led
by the management in the circumstances stated aforesaid. Such findings
rendered by the School Tribunal are not perverse and thus cannot be
interfered with by this Court in the present writ petition under Articles
226 and 227 of the Constitution of India. In my view, the petition is
totally devoid of merit and is accordingly dismissed.
40. I therefore pass the following order :-
(a) Writ Petition No.6199 of 2016 is dismissed. No order as to costs;
(b) The petitioners are directed to comply with the judgment and order
dated 16th October 2015 passed by the School Tribunal within
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four weeks from today in so far as reinstatement of the respondent
no.1 is concerned;
(c) Office is directed to permit the respondent no.1 to withdraw the
balance amount lying deposited by the petitioners within one week
from today;
(d) Parties and office to act on the authenticated copy of this order.
R.D. DHANUKA, J.
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