Bombay High Court
Jeevak Aushadhi Arogya Shetki ... vs Zolba Buddhuji Bandhate And Another on 4 September, 2019
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 wp5478.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5478 OF 2019
1. Jeevak Aushadhi Arogya Shetki
Sanshodhan Sanstha, Pipari,
Tq. & Dist. Bhandara, through
its Secretary, Residing at Pranag,
HIG-11,Mhada Colony, Khat Rd.
Bhandara - 440904.
2. The Headmaster, Pranag High
School, Anjangaon, Post: Babdeo,
Tah. : Mouda, Dist. Nagpur.
.... PETITIONERS.
// VERSUS //
1. Shri Zolba Buddhuji Bandhate,
R/o. Plot No.72, Tulshi Nagar,
Khat Road, Bhandara, Taluqa
& Dist. Bhandara - 441 904.
2. The Education Officer
(Secondary)
Zilla Parishad, Nagpur.
.... RESPONDENTS.
___________________________________________________________________
Shri A.C.Dharmadhikari, Advocate for Petitioners.
Ms R.D.Raskar, Advocate for Respondent No.1.
Shri K.L.Dharmadhikari, A.G.P. for Respondent No.2.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : SEPTEMBER 04, 2019.
ORAL JUDGMENT :
1. Heard.
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2. RULE. Rule made returnable forthwith.
3. The petitioners (Management) have challenged the order passed by the School Tribunal, allowing the appeal filed by the respondent No.1(employee) and directing the management to reinstate the respondent No.1(employee) in service with full back-wages and continuity.
4. The services of the respondent No.1(employee) were terminated by order dated 23 rd August 2014, after departmental enquiry was conducted against the respondent No.1(employee) and charges framed against the respondent No.1/employee were found to be proved.
5. The Tribunal has recorded that the enquiry conducted against the respondent No.1(employee) was in breach of the mandate of Rules 36(1), 36(2)(i), 36(2)(iii), 37(1) and 37(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 (hereinafter referred as 'the Rules of 1981'). Though the learned Advocate for the petitioner (management) tried to attack the order passed by the School Tribunal on the ground that the Tribunal has committed an error by holding that the departmental enquiry was not conducted as per the mandate of the above referred Rules of 1981, he failed to substantiate the argument. Conclusions of the Tribunal on the point that the enquiry conducted against the respondent No.1(employee) was not proper and in accordance with the ::: Uploaded on - 18/09/2019 ::: Downloaded on - 18/04/2020 09:32:14 ::: Judgment 3 wp5478.19.odt above referred Rules of 1981 are based on proper consideration and appreciation of the material and evidence on record. Hence, the finding recorded by the Tribunal that the enquiry conducted against the respondent No.1(employee) was not proper, cannot be faulted with.
6. An alternate submission is made on behalf of the petitioner (management), is that in such situation the Tribunal should not have directed the reinstatement of the respondent No.1(employee), but should have remitted the matter to the management for fresh enquiry and it should have been directed that till conclusion of the enquiry the respondent No.1 (employee) would be under suspension.
To support this contention, the learned Advocate for the petitioner (management) relied on the following judgments:
i) Judgment given by the Hon'ble Supreme Court in the case of U.P. State Spinning Co. Ltd. Vs. R. S. Pandey and Anr. , reported in 2005(8) SCC 264;
ii) Judgment given by the Hon'ble Supreme Court in the case of Vidya Vikas Mandal Vs. Education Officer , reported in (2007) 11 SCC 352,
iii) Judgment given by this Court in the case of B.S.A.E.Society vs. School Tribunal, reported in 2014(2) Mh.L.J. 879, ::: Uploaded on - 18/09/2019 ::: Downloaded on - 18/04/2020 09:32:14 ::: Judgment 4 wp5478.19.odt
iv) Judgment given by this Court in the case of Abdul Salam vs. Shah Babu Edu. Society, reported in 2014(5) Mh.L.J. 41;
7. The learned Advocate for the respondent No.1(employee) supported the impugned order and argued that as the Tribunal found that the enquiry conducted against the respondent No.1(employee) was in blatant breach of the mandatory provisions of Rules 36 and 37 of the Rules of 1981, and as the respondent No.1(employee) has established that the enquiry conducted against him was only a farce to oust him from service, the Tribunal has examined the matter as appellate Authority and on appreciation of the evidence on record has found that further enquiry against the respondent No.1 (employee) is not necessary, and has rightly directed the management to reinstate the respondent No.1(employee) with consequential benefits. It is argued that the course adopted by the Tribunal is permissible, and to support this submission, the learned Advocate for the respondent No.1(employee) has relied on the following judgments :
i) Judgment given by the Hon'ble Supreme Court in the case of CCE Vs. Hari Chand Shri Gopal, reported in 2011(1) SCC 236,
ii) Judgment given by this Court in the case of Kranti Junior Adhyapak Mahavidhyalaya Vs. State of Maharashtra, reported in 2011(6) ALL MR 625.::: Uploaded on - 18/09/2019 ::: Downloaded on - 18/04/2020 09:32:14 :::
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iii) Judgment given by this Court in the case of Bhagwanrao Vs. Sunita, reported in 2008(1) Mh.L.J. 417 The learned Advocate for the respondent No.1(employee) submitted that the order passed by the School Tribunal need not be interfered with and the petition be dismissed with costs.
8. After considering the rival submissions, I find that the Tribunal has committed an error by taking away the right of the Management to conduct an enquiry against the respondent No.1/employee to ascertain the truthfulness and genuineness of the charges levelled against him. While dealing with similar situation, in the case of Saindranath Vs. Pratibha S. Sanstha, reported in 2007(3) Mh.L.J. F.B. 753 the Full Bench has recorded as follows:
"45. At this stage, it would be relevant to make reference to the cases of Government employees, who are protected under Article 311 of the Constitution of India. If the punitive action leading to dismissal, removal or reduction in rank without holding enquiry is taken in case of Government employee, then no alternative is left for the Courts but to direct reinstatement with full backwages. However, in the recent judgments, the Apex Court has adopted little different route and permitted the management to hold departmental enquiry from the stage the illegality has crept in. In this behalf, readily available judgments are in the cases of State of Punjab and others vs. Dr. Harbhajan Singh Greasy, U. P. State Spinning Co. Ltd. vs. R. S. Pandey and another, (2005) 8 SCC 264, U. P. State Textile Corpn. Ltd. vs. P. C. Chaturvedi and others, 2005 (8) SCC 211 ; wherein the Supreme Court has observed that in case of no enquiry or defective enquiry, proper relief is to set aside the dismissal with direction to ::: Uploaded on - 18/09/2019 ::: Downloaded on - 18/04/2020 09:32:14 ::: Judgment 6 wp5478.19.odt the management to hold enquiry from the stage the illegality has crept in and that the reinstatement is to be treated for the purposes of holding fresh enquiry and no more. So far as backwages are concerned, the entitlement thereof is to make dependent on the final outcome of the fresh enquiry."
Following the judgment given in the case of Harbhajan Singh (supra), the learned single Judge of this Court in the case of Abdul Salam Abdul Khalique (supra) has laid down that if the School Tribunal holds that the constitution of the enquiry committee is found to be defective, the School Tribunal cannot go into the merits of the charges levelled against the employee.
9. In my view, the judgments given in the cases of Harbhajan Singh (supra) and Abdul Salam Abdul Khalique (supra) provide answer to the issue which falls for consideration in this matter. Considering the propositions laid down in these judgments, it has to be held that the Tribunal should have remitted the matter to the Management for de novo enquiry.
10. In view of the above, the following order is passed:
i) The findings recorded by the School Tribunal that the enquiry conducted against the respondent No.1/employee was illegal and defective, are maintained.::: Uploaded on - 18/09/2019 ::: Downloaded on - 18/04/2020 09:32:14 :::
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ii) The directions given by the Tribunal to the Management (petitioners) to reinstate the respondent No.1/employee with full back-wages and continuity, are set aside.
iii) The matter is remitted to the Management for conducting fresh enquiry against the respondent No.1(employee), if it so desires.
iv) However, as the enquiry is required to be completed within 120 days as per Rule 37(2)(f) of the Rules of 1981 and the period has lapsed, the Management is directed to reinstate the respondent No.1/ employee in the post in which he was working.
The learned Advocate for the petitioners(Management), on instructions, stated that the post in which respondent No.1/employee was working is filled up and therefore, it would not be possible to allot work to the respondent No.1(employee). It is up to the petitioners(Management), whether work should be allotted to the respondent No.1(employee) or not. However, it should be treated that the respondent No.1(employee) is reinstated w.e.f. 4 th September 2019 and the Management (petitioner No.1) shall pay salary and allowances to the respondent No.1 regularly every month. ::: Uploaded on - 18/09/2019 ::: Downloaded on - 18/04/2020 09:32:14 :::
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v) Salary of the respondent No.1(employee) shall be deposited by the Management(petitioner No.1) in the bank account of the respondent No.1 till 10th of every month.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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