Bombay High Court
Deendayal Education Trust Through ... vs State Of Maharashtra Through Secretary ... on 2 December, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:46302
wp 12378-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12378 OF 2019
Deendayal Education Trust, ]
Through its Managing Trustee/ ]
Chief Executive Officer, ]
having its office at C/o Swami Vivekananda ]
High School, Ground Floor, ]
Deendayal Nagar, Kurar Village, ]
Malad (E), Mumbai 400097. ] ...Petitioner.
Versus
1. State of Maharashtra ]
Through The Secretary, ]
School Education Department, ]
4th Floor, Mantralaya, Mumbai - 32. ]
2. The Deputy Director of Education. ]
Mumbai Region, Mumbai Having ]
office at : Javahar Bal Bhavan, ]
Netaji Subhash Marg, Charni Rd, ]
Mumbai - 400 004. ]
3. The Education Inspector, ]
Gr. Mumbai, (West Zone), ]
having his office at I.Y. College Compound, ]
Jogeshwari (East), Mumbai 400 060. ]
(the Respondent Nos. 1 to 3 to be served ]
through Govt. Pleader, High Court, ]
PWD Bldg., Mumbai.) ]
4. Shri. Uday Pratap A. Singh ]
Residing at A/202, Dharmadeep ]
Co-op. Housing Society, Aachole Road, ]
Nalasopora (E), Taluka Vasai, ]
Palghar 401209. ] ...Respondents.
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Mr. Vishwajeet P. Sawant, Senior Advocate along with Mr. T. R. Yadav and Mr.
Shaikh Nasir Masib for the Petitioner.
Ms. Jai Kanade i/b Ms. Sapna Krishnappa for the Respondent No.4.
Ms. M. S. Bane, AGP for the Respondent-State.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : September 3, 2024 Pronounced on : December 2, 2024.
Judgment :
1. Rule. With consent, Rule made returnable forthwith and taken up for final hearing.
2. The petition is at the instance of Management Trust challenging the Judgment and Order of School Tribunal dated 3 rd August 2019 allowing the appeal of Respondent No.4 by setting aside the termination order dated 17th October 2016 and directing the Petitioner to reinstate the Respondent No.4 with full backwages and continuity in service with all emoluments and to pay compensatory cost of Rs.50,000/-.
FACTUAL MATRIX:
3. The Petitioner runs several schools including Swami Vivekananda High School (Hindi Medium) which is a private aided recognised secondary school. The Respondent No.4 was appointed as Assistant Teacher on 13th June 1996 in the said School and was promoted as Headmaster on 13th June, 1999. On 1st October 2014, the Respondent No.4 was served with the Statement of Allegations under Rule 36(1) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 [for short "the MEPS Rules"]. On 7th October Patil-SR (ch) 2 of 58 wp 12378-19.doc 2014, the Respondent No.4 submitted his explanation to the Statement of Allegations. On 9th October 2014, a corrected statement of allegations on Point No.2 of the first Statement of Allegation came to be served upon Respondent No 4.
4. As the decision was taken to conduct the enquiry, the Respondent No 4 was called upon to appoint his nominee and on 27 th October, 2014, one Sudhakar Tiwari was appointed as nominee of Respondent No 4. On 31st October 2014, Charge-Sheet was issued to the Respondent No 4, which was responded by Respondent No 4 on 10th November, 2014. The enquiry commenced on 13th November 2014 and was concluded on 19th December, 2014. Vide order dated 12th January 2015, the Respondent No 4 was terminated from service which was challenged by the Respondent No.4 before the School Tribunal and by order dated 16th February 2016, the termination was set aside and matter was remanded to the Enquiry Committee to be considered afresh from the stage of submission of documents and witness list with a direction to conclude the Enquiry within 3 months, during which period, the Respondent No 4 to remain under deemed suspension.
5. On 23rd March 2016, communication about fixing of the Enquiry Committee Meeting on 4th April, 2016 was issued by the Petitioner to the Respondent no 4. It was stated in the said communication that apart from the earlier documents relied upon by the Petitioner, the Patil-SR (ch) 3 of 58 wp 12378-19.doc three member investigation team report dated 3 rd January, 2015 will also be relied upon. It was also stated that in support of the charge sheet, the Petitioner is relying only on the documents and will not examine any witness. The communication enclosed documents running into 40 pages. By communication dated 29 th March 2016, the Respondent No.4 objected to the inclusion of additional documents contending that the remand was from the stage of submission of documents.
6. The gist of the relevant meetings of the Enquiry Committee are referred to hereinafter. In the first meeting, after remand, held on 4 th April 2016, the Presenting Officer on behalf of the Management enumerated the documents filed by the Management and submitted that the Management had nothing further to say and will rely on documents filed and the Enquiry Committee directed Respondent No.4 to produce his evidence in the next meeting. Vide letter dated 4 th April 2016 addressed to the Convener of Enquiry Committee, the Respondent No.4 objected and disputed the authenticity of the documents produced by Petitioner. The evidence of Respondent No 4 commenced in the meeting held on 12th April 2016. On 12th April 2016, the Petitioner addressed a communication to Respondent No.4 re-
iterating that the Petitioner will rely upon documentary evidence and does not wish to produce any witness and therefore the objection that Patil-SR (ch) 4 of 58 wp 12378-19.doc no list of witnesses is given is without any reason.
7. On 22nd April 2016, during the 4th meeting the Respondent No.4 requested for appointment of a temporary nominee Mr. D. R. Singh till the earlier nominee resumes as he was in personal difficulty. The replaced nominee Mr. D. R. Singh was accepted as a permanent nominee by the Petitioner with the condition that the employee will not be allowed to change his nominee again. On 22 nd April, 2016, the Respondent no 4 addressed communication to the Convener of the Enquiry Committee seeking copy of certain documents such as Biometric print, extract of M.C. resolution, school audit report, dead stock register, salary bills, log books, daily diary, library register relied upon by the Petitioner. It was also stated that inspection was offered on 21st April, 2016 and the letter was received on 21 st April late in afternoon and as enquiry is fixed on 22 nd April, 2016 he will take inspection during the enquiry sitting. In the meeting of 25 th April, 2016, before the start of the cross examination, the Respondent No 4 was called upon to take inspection, which liberty was reserved by the Respondent No 4.
8. On 1st August 2016, the School Tribunal extended time limit by two months with direction to continue enquiry with the replaced nominee of Respondent No.4, i.e. Mr. D. R. Singh.
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9. In the meeting of 24th August, 2016, the Presenting Officer of Management submitted a Compact Disk as electronic proof and the transcript thereof. The Compact Disk was played during the meeting. The Respondent No 4 sought copy of the Compact Disk for purpose of answering the questions on the Compact Disk and the cross examination on the Compact Disk was deferred.
10. The evidence of the witness-Kiran Singh of Respondent No.4 was concluded on 3rd September, 2016. In the meetings of 8 th September 2016 and 9th September 2016, the Presenting Officer of the Petitioner requested for permission to lead evidence. On 13 th September 2016, the evidence of Respondent No 4's second witness Ms. Pooja Singh was concluded.
11. In the 40th meeting held on 21st September 2016, the Presenting Officer of Petitioner was permitted to lead evidence. The Presenting Officer produced the list of documents alongwith the documents and offered herself for cross-examination, which was declined by Respondent No 4 for the reason that no witness had been examined. By communication dated 23rd September 2016, addressed to the Convener, the Respondent No.4 informed that the Management has threatened his witnesses with dire consequences and his witnesses were not permitted to appear before the Enquiry Committee, enclosing the complaints made by the proposed witnesses.
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12. On 24th September 2016, the Enquiry Committee concluded the enquiry and directed preparation of summary and invited reply from the Respondent No.4. On 27th September 2016, the summary of proceedings under Rule 37(4) of the MEPS Rules was served upon the Respondent No.4 calling for his explanation under Rule 37(5) of the MEPS Rules. On 3rd October 2016 the Respondent No.4 submitted his response. On 8th October 2016 and 13th October 2016 meetings were held to discuss the summary and the reply. On 13 th October 2016, the Enquiry Committee submitted its report with definite recommendation of termination of Respondent No.4 from the services under Rule 37(6) of the MEPS Rules.
13. Against the termination order dated 17th October 2016, the Respondent No.4 preferred Appeal No.29 of 2016 before the School Tribunal which was dismissed vide Judgment dated 28 th June 2017. Writ Petition No. 2845 of 2017 filed against dismissal of appeal came to be dismissed by this Court by order dated 30 th July 2018. Review Petition No.60 of 2018 was filed by the Respondent No.4, which was allowed and by consent, the order dated 28 th June 2017 was set aside and matter was remanded to the School Tribunal for hearing afresh.
14. After hearing afresh, vide impugned Judgment and Order dated 3rd August 2019, the School Tribunal allowed the Appeal which is impugned in the present Petition.
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SUBMISSIONS:
15. Mr. Sawant, Learned Senior Advocate for the Petitioner would submit that the School Tribunal has held against the Management on all counts of fairness of enquiry, perversity of findings and disproportionate penalty. He submits that the enquiry was held to be vitiated for the reasons that the Nominee of Management on the Enquiry Committee was a practicing Advocate, Respondent No.4 was not allowed Nominee of his choice, non supply of documents to Respondent No.4, delay in concluding the enquiry, no proper opportunity of representation given to Respondent No 4 as the leave was not granted to the employees to appear as witnesses, and the Presenting Officer appearing as witness for Management.
16. He submits that the School Tribunal has misdirected itself in considering Section 14 of MEPS Act and Rule 43 of the MEPS Rules which places an embargo on legal representation by the parties as a matter of right before the Director and Tribunal and does not vitiate the enquiry by reason of practicing Advocate being part of Enquiry Committee. He submits that the nominee was selected from the panel of the awardee teachers maintained by the State Government and if not qualified would not be part of panel.
17. He would further submit that the delay in conducting the enquiry Patil-SR (ch) 8 of 58 wp 12378-19.doc was attributable to Respondent No.4 as he kept on changing his nominee and no prejudice has been demonstrated to have been caused by not allowing the nominee to continue. He would assail the findings of School Tribunal of non supply of documents as factually erroneous, as according to Mr. Sawant, all documents were supplied which is reflected in summary of meetings as Respondent No.4 was called upon to take inspection of the documents including the Compact Disk, which liberty was by the Respondent No.4. He would submit that by communication dated 23rd March 2016, the report of three member committee dated 3rd January 2015 appointed by the Deputy Director of Education was given to the Respondent No 4 and on 20 th April 2016, inspection was offered. He submits that it is not disputed that the audit report of school was given.
18. He submits that the finding of the tribunal that the Presenting Officer cannot be a prosecutor and a witness is legally unsustainable in the absence of any statutory bar. He submits that under Section 9 of the MEPS Act, the School Tribunal cannot re-appreciate evidence and neither can go into adequacy of evidence and if there is evidence on record to support even one charge, the scope of interference is limited.
19. On proof of charges, he submits that Charge No. 5 is grave charge of misappropriation of funds on three counts firstly as the school account shows transfer of Rs 25,000 to the Petitioner, which Patil-SR (ch) 9 of 58 wp 12378-19.doc amount was not received by the Petitioner, secondly about unauthorised unaccounted collection of Rs.50/- from the students and thirdly, wrong payment bills submitted by the Respondent No.4 by claiming the salary of an Assistant Teacher for Shikshan Sevak.
20. He submits that the said charge has been proved by producing the audit report which is at Page 50 and the entry at Page 52 reflects payment of school rent by the school to the trust of Rs.24,000/- which audit report has been signed by the Respondent No.4, the copy of approval letter of Pooja Singh as an Assistant Teacher dated 23 rd March 2009 as per proposal sent by Respondent No.4 though she was a Shikshan Sevak and copy of appointment letter issued in the year 1997 signed by the Respondent No.4 and given to Kiran Singh even though the Respondent No.4 was not a headmaster in the year 1997. He points out to page 67 of Volume-I of the compilation of documents which is appointment letter of Kiran Singh and would also point out the cross-examination wherein Kiran Singh has admitted her signature.
21. He submits that the documentary evidence on record is more than sufficient to prove the charge and the Presenting Officer had offered herself for cross-examination which was declined by the Respondent No.4. He submits that the School Tribunal has glossed over the fact that inspection had been offered which has not been taken by the Respondent No.4. He would further submit that the Patil-SR (ch) 10 of 58 wp 12378-19.doc evidence has to be considered on preponderance of probabilities and the Charge No.5 has been rightly held by the Enquiry Committee to be proved. He submits that Charge No.5 which is a serious charge is enough to bring home the order of termination.
22. On Charge No.4 of violation of rules by preparing new attendance muster for teacher in spite of old one to hide the irregularities in daily attendance, Mr. Sawant would submit that the Enquiry Committee has considered the communication dated 30 th May 2008 by the Education Inspector that from 2 nd May 2008 to 30th May 2008 the Respondent No.4 was absent and in June 2008 after resuming duties he has signed on the attendance register. He submits that the Petitioner had relied upon Education Inspector's report dated 23 rd July, 2015 stating that it is the Head Master and not the teachers who are at fault for signing the second muster register. He would further submit that the Respondent No 4 had admitted his mistake vide letter dated 10th March, 2013 which was sufficient proof of the charge of preparation of duplicate muster. He submits that the finding of School Tribunal of the charge deserving minor penalty glosses over the severity of misconduct as preparation of duplicate muster amounts to falsification of records.
23. On Charge No.7 as regards non updation of dead stock register, library register, log book register, etc., he submits that the Patil-SR (ch) 11 of 58 wp 12378-19.doc Management has proved the charge by producing communication dated 18th April 2014 addressed to all Section headmasters for submission of various record which was not complied with by Respondent No.4. He would further point out that the Teachers' meeting register prepared by the Respondent No.4 is manipulated as meetings are shown to have been conducted, however, there are no signatures and wrong dates are shown in the register. He would further submit that in respect of the parent teachers meeting register also the days have been wrongly recorded in the headmaster's log book. He submits that by letter dated 20 th April 2016, the Management had offered the inspection of registers and minutes books to the Respondent No.4, however, the Respondent No.4 did not take inspection.
24. On Charge No.6 of using abusive and filthy language against the employees of institute specially the female employees, Mr. Sawant submits that the charge is backed by the complaints received by the Management. He submits that the charge was proved through production of NC complaints and the FIR lodged by employee Ms. Radhana Singh and the complaints made by Ms. Radhana Singh to the Management about the misconduct by Respondent No 4. He submits that the Management had also produced CD containing the audio recording and the transcript which clinches the issue. He has taken this Patil-SR (ch) 12 of 58 wp 12378-19.doc Court through the transcript and submits that the School Tribunal has not appreciated the gravity of the misconduct by considering the subsequent compromise which was entered into after the enquiry. He submits that the School Tribunal has further held that the copy of CD was not supplied without noticing that the transcript of CD was supplied. He submits that warning letter was given to the employee to which there was no response and the same was produced before the Enquiry Committee. He submits that based on the complaint the Respondent No.4 was taken to jail and therefore there was sufficient evidence.
25. As regards Charge No.1 of violating the Rules by not conducting the meetings within 2 months as per the MEPS Rules, he submits that under Rule 16 of the MEPS Rules, it is the duty of headmaster to convene the school committee meeting. He would further submit that the copy of the minutes of school committee meeting dated 4 th October 2013 was produced on record which evidences receipt of notice by Respondent No.4 and despite thereof, the Respondent No.4 though present in the school did not attend the school meeting. He would further point out to the enquiry report by 3 member committee dated 3rd January 2015 reporting that the school meetings are not being held regularly.
26. As regards Charge No.2 of not using the biometric machine for Patil-SR (ch) 13 of 58 wp 12378-19.doc daily attendance and instigating other teachers not to use the biometric machine, he submits that the same violates the code of conduct. He would further point out that the charge also includes charge of not furnishing detailed information to the Management when called upon to check the printed attendance report and clearing the salary bills though the Management is not updated about the attendance. He would further point out to Exhibit N-28 which is a report of the biometric attendance record and would point out that the period between 1st October 2012 to 31st October 2012 would show that in respect of some of the employees the biometric machine has not been used and for the period between 1st February 2013 to 30th April 2013 in respect of some of the employees, the attendance is completely blank.
27. He would further submit that the conduct of insubordination, manipulating the registers and misappropriation of funds and using of filthy language would invite the punishment of termination. He submits that the charges having been proved there is no scope for the School Tribunal to interfere with the punishment or hold the findings as perverse considering the limited scope of examination.
28. On the aspect of back wages, he submits that there is no affidavit filed by the Respondent No.4 that he was unemployed and the burden was upon the Respondent No.4 to plead and prove that he Patil-SR (ch) 14 of 58 wp 12378-19.doc was not employed. He submits that the compensatory cost has been wrongly awarded and the delay in the enquiry proceedings is attributable to the Respondent No.4 and in the meantime as someone else is appointed, the reinstatement is not justified. In support of his submissions, he relied upon following case laws :
Shikshan Prasarak Mandal v. Ramesh Bhimrao Narayankar1 S. V. S. Marwari Hospital v. State of West Bengal2, Shivaji Education Society v. Presiding Officer3 Kandivali Education Society v. Narayan Eknath Lokegaonkar4, M/S. Banaras Electric Light and Power Co v. Labour Court 5, State of Rajasthan v. Mohd. Ayub Naz6, Thapar Education Society v. Shyam Maroti Bhasarkar7, Dharmarathamkara Raibahadur Arcot Ramaswamy Mudaliar Educational Institute v. Educational Appellate Tribunal 8, Abha Chawla Mohanty v. The Oriental Insurance Co. Ltd 9, Union of India v. Subrata Nath10, Deputy General Manager v. Ajai Kumar Srivastava11, Sulochana Daulatrao Thakare v. Sangam Shikshan sanstha12, Manish Kumar v. Human Resource Management13, President/Secretary Uttar Bhartiya Education Society v. 1 2016 (3) Bom. C. R. 1 2 AIR 2015 CAL 82 3 2001 (Supp.) Bom. C. R. 400 4 2014 SCC OnLine Bom 2676 5 (1974) 3 SCC 103 6 (2006) 1 SCC 589 7 (1997) 3 Mh L.J. 709 8 (1999) 7 SCC 332 9 2011 SCC OnLine Bom 1461 10 2022 SCC OnLine SC 1617 11 2021 (2) SCC 612 12 2004 (4) Bom. C. R. 488 13 2024 LAB I.C. 3064 Patil-SR (ch) 15 of 58 wp 12378-19.doc Naresh Tejan Thakur14, and Rajasthan State Road Transport Corporation v. Phool Chand15,
29. Per contra, Mrs. Kanade, Learned counsel for the Respondent No.4 would submit that this Court would only interfere under Article 226 or 227 if there is jurisdictional error. She would further point out there is non compliance of Rule 37 of the MEPS Rules as during enquiry hearings, the Education Department's report dated 3 rd January 2015 Exhibit N-13 was introduced in the 6th meeting, the document at Exhibit N-16 which is the school meeting notice dated 30 th September 2013 and the document at Exhibit N-28 which is thumb impression report and Exhibit N-29 which is the Education Inspector's enquiry report dated 23rd July 2015 was produced after the Respondent No.4 had submitted his defence. She would further submit that the Compact Disk and transcript were introduced during the cross-examination and the Respondent No.4 was not given copy of Compact Disk. She would submit that the dead stock register, log book register, student attendance register and other registers were produced for the first time during the 25th to 28th meeting. She submits that statement of allegations dated 1st October, 2014 mentions that 29 pages are enclosed whereas after the remand additional documents were 14 2023 BHC 37285 15 (2018) 18 SCC 299 Patil-SR (ch) 16 of 58 wp 12378-19.doc included in the notice of first meeting showing about 40 pages which is impermissible.
30. She submits that in support of his case the Respondent No.4 had examined two witnesses Kiran Singh and Pooja Singh and other teachers were proposed to be examined, however, they were not given leave and in respect of the same, a communication dated 17 th September 2016 Exhibit N-36 was addressed to the convener of Enquiry Committee showing the intimidation by Management. She would submit that thus no opportunity of proper representation was given to the Respondent No 4.
31. She submits that the Management had submitted that it does not propose to lead evidence and changed stand midway seeking permission to lead evidence, which was wrongly granted. She submits that however no oral evidence was led and only documents were produced and the Presenting Officer offered herself for cross- examination. She submits that without the Presenting Officer or any witness on behalf of the Management stepping into the witness box and without any evidence being recorded, there is no question of any cross-examination by the Respondent No.4.
32. She submits that under Rule 37(2)(ii) of the MEPS Rules, all documents and list of witnesses is required to be produced and copy given within a period of 10 days. She submits that if any document Patil-SR (ch) 17 of 58 wp 12378-19.doc relied upon is a register or the record of school, the employee is to be permitted to take out the relevant extract from such registers or record which has not been permitted in the present case.
33. Pointing out to the statement of allegations and charge-sheet, she would submit that the charges are vague.
34. On Charge No.5 as regards financial misappropriation, she submits that Charge No.5 is extremely vague as it does not give details of the teacher in respect of whom wrong salary bills were submitted or the time period of the submission. She submits that similarly in respect of Charge No. 6 of use of abusive language there are no details about the teachers against whom abusive language was used. She would submit that similarly Charge No.7 as regards non updation of registers does not given any details of the period.
35. She would further point out that as per the remand order the enquiry was to be conducted from the stage of submission of documents and list of witnesses and 3 months time was given, however, the first meeting was convened by Petitioner on 4 th April 2016.
36. She submit that the the present case is a case of no evidence as the Presenting Officer has merely produced the list of documents on record and that too during the meeting of Enquiry Committee and offered herself for cross examination without stepping in the witness Patil-SR (ch) 18 of 58 wp 12378-19.doc box. She would submit that no witnesses were examined by the Management in proof of the charges and therefore the charges are not proved. She submits that the Respondent No.4 had objected to the documents by letter dated 4th April 2016 and therefore in view of the objection the documents were required to be proved.
37. She would further submit that as regards Charge No.5 of submitting wrong payment bills by claiming a salary of Assistant Teacher for Shikshan Sevak, the said allegation was not part of Statement of Allegation. On the charge of misappropriation of funds she would point out that audited accounts is signed by the chartered accountant. She submits that the Charge is not proved as the Trust did not examine any witness and neither the Respondent No.4 was given copy of the audit reports of Trust. She would further submit that the Respondent No.4 has specifically deposed that Kiran Singh was appointed in the year 1997 whereas the school became an aided school in the year 2006 and at that point of time the Education Department was granting individual approval to the staff and the proposals were sent by the Management to the Education Department. She would further submit that the explanation has also been given in respect of the teacher Pooja Singh whose appointment was in the unaided school and therefore there is no question of appointment as a Shikshan Sevak.
38. On the issue of illegal collection of Rs.50 from the students, in Patil-SR (ch) 19 of 58 wp 12378-19.doc the statement of allegations, it is stated that one teacher Ravindra Pratap Singh had given in writing that money was collected by one Anil Singh, Assistant Teacher, however said Ravindra Pratap Singh is not examined. She submits that Anil Singh was proposed to be examined by the Respondent No.4 as his witness and Anil Singh's request for permission to attend the enquiry was rejected by the Management by asking to take leave which amounts to denial of opportunity to Respondent No.4. She would further submit that said Anil Singh had lodged a complaint on 9th April 2013 with Kurar police station against the Management that the Management had threatened him in confessing that he was collecting money from students. She would further submit that some of the parents had addressed communication to the Respondent No.4 that the students have been forced to sign the letter against the teacher about collection of money.
39. On Charge No.6 of using abusive language, she submits that the Management has relied upon 3 complaints by one teacher Radhana Singh however said Radhana Singh has not been examined. She would submit that though NC complaint and FIR was lodged, subsequently the Respondent No.4 has been acquitted on 1 st July 2017 as during evidence Radhana Singh had admitted that out of anger she had lodged report with Kurar police station. She would further point out that in the meeting held on 24 th August 2016, the Respondent No.4 Patil-SR (ch) 20 of 58 wp 12378-19.doc had asked for copy of the Compact Disk and as copy was not given, the Enquiry Committee had directed that there should not be cross- examination on the Compact Disk.
40. She submits that as far as Charge No.4 of preparing of new muster register is concerned, the Respondent No 4 in his evidence has produced complaint dated 24th July, 2013 lodged by Respondent No 4 with Education Inspector that the Management Trustee Mr. Shamsher Singh in May 2013 had taken away the attendance register, etc., and has not returned and has deposed that in the meantime the department officials had directed him to prepare a new attendance register as head of the school. She submits that in the cross- examination there is no contradiction. She would further point out that in the cross-examination, Pooja Singh, witness for Respondent No.4, has stated that the teachers had not stopped signing on the muster register and that the muster itself had been removed. She would further point out that the enquiry report of Education Officer dated 23rd July 2015 is during the suspension of Respondent No 4. She submits that this report was revised in the minutes of meeting held on 22nd April 2015 in which the Respondent No.4 had not participated and was produced after remand.
41. She would further submit that the allegation that Respondent No 4 had not attended the meeting held on 4 th October, 2013 has been Patil-SR (ch) 21 of 58 wp 12378-19.doc met by Respondent No 4 by deposing that he had not received notice of meeting and the Management has not produced the proof of delivery of notice.
42. As regards the non use of biometric machine she would submit that no record had been produced by the Management about biometric recording of attendance and the register signed by the teachers is available in school which is not produced. She would further point out that the Respondent No.4 has deposed that he was not given any letter on 6th May 2013 asking for the verification of the printed attendance register. She would further point out that Exhibit N-28 which is at page 336 is only for the month of October, 2012 and for month of April, 2013.
43. She would further submit that Pooja Singh-witness for the Respondent No.4 Pooja Singh has deposed in her cross-examination that they had asked for thumb impression slip however the same was not given and therefore they had stopped using biometric machine. She would further point out the report of Education Officer dated 17 th December, 2014 which records that the teachers had informed the trustee Samsher Singh that there is no order of the State Government for using biometric machine and therefore only the attendance register will be signed.
44. On the aspect of wrong timetable she would submit that there Patil-SR (ch) 22 of 58 wp 12378-19.doc was no witness examined to prove the charge of error in the timetable. She would further point out that the Respondent No.4 has specifically deposed that the correct timetable was prepared and used for 2 years and there was no complaint from the students, parents or the concerned teachers and that the wrong timetable was prepared by the office which is not at all used and is produced in the enquiry to support the allegation.
45. On the issue of non updation of dead stock register, she submits that in the cross-examination for the first time the registers were introduced without furnishing a copy to Respondent No.4 and without examining any witness. She submits that there is no question of re- appreciation of evidence by the Tribunal as there is no evidence.
46. On the aspect of reinstatement with backwages, she would point out that the submission of Petitioner Management is that the Respondent No.4 is gainfully employed in Hansa International School based on certain photographs. She submitted that in the affidavit in rejoinder filed by the Respondent No.4 a statement has been made that he is not gainfully employed. She would submit that in view of the finding of fact arrived at by the School Tribunal, the back wages has been rightly granted.
47. In support of her submissions, she relied upon following decisions :
Patil-SR (ch) 23 of 58 wp 12378-19.doc Radhey Shyam v. Chhabi Nath16 Mahalaxmi Shikshan Sanstha v. State 17 Anant R. Kulkarni v. Y P Education Society 18 Chandrama Tewari v. Union of India19 Ashok v. secretary, G S P Mandal20 Roop Singh Negi v. Punjab National Bank 21 Rajasthan SRTC v. Bal Mukund Bairwa (2)22, M V Bijlani v. Union of India23, Nirmala J Jhala v. State of Gujrat24, Vidya Vikas Education Society v. Sunil Gulabrao Wadatkar 25, Lt Governor v. HC Narinder Singh26, M S Bindra v. Union of India27, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya28, Sukhwant Singh v. State of Punjab29, and Surya Kumar Kokate v. State of Madhya Pradesh 30,
48. In rejoinder, Mr. Sawant would submit that a specific ground was taken regarding the gainful employment of Respondent No.4 and there has to be specific averment by Respondent No 4 about not being gainfully employed and it is not sufficient to only deny the employment with Hansa International School. He would submit that 16 (2015) 5 SCC 423 17 1998 (1) Mh.L.J.826 18 (2013) 6 SCC 515 19 1987 (Supp) SCC 518 20 2015 (5) Mh.L.J. 678 21 (2009) 2 SCC 570 22 (2009) 4 SCC 299 23 (2006) 5 SCC 88 24 (2013) 4 SCC 301 25 (2024) 1 AIR BOM R 453 26 (2004) 13 SCC 342 27 (1998) 7 SCC 310 28 (2013) 10 SCC 324 29 (1995) 3 SCC 367 30 2022 SCC OnLine MP 6067.
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the photographs are produced on record which constitute evidence and based on the principle of preponderance of probabilities, the gainful employment of Respondent No.4 has been proved.
49. He submits that the criminal case filed by the teacher establishes the incident and on this ground alone the punishment is justified. He would further submit that Compact Disk was played during the proceedings and it is not the case of Respondent No.4 that the voice in the Compact Disk is not his voice. He submits that the Respondent No.4 has admitted that another muster was created to avoid recording of teachers' attendance which constitutes misconduct even if the Management had taken away the muster. He submits that the biometric system was not followed which is evident from the Education Department's report. He submits that the Respondent No.4 had notice of the charges, opportunity was given to bring the witnesses, opportunity of hearing was given and the enquiry report was shared and therefore there is no breach. He submits that it is well settled that unless the punishment is shockingly disproportionate, the School Tribunal should not interfere.
REASONS AND ANALYSIS:
50. Before adverting to the merits of the matter, it would be prudent to bear in mind the limitations on the power of the High Court while exercising powers under Article 226/227 of Constitution of India Patil-SR (ch) 25 of 58 wp 12378-19.doc in disciplinary proceedings. In Union of India v. P.Gunasekaran31, the Apex Court summarised the scope of interference as under:
"12..................................... The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
31 (2015) 2 SCC 610.
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(vii) go into the proportionality of punishment unless it shocks its conscience."
51. It is well settled proposition that the nature of power that flows from Section 9 read with Section 11(2) of MEPS Rules is restricted to the enquiry on the basis of whether the decision was without any legal evidence on record and scope of enquiry cannot be enlarged to re- appreciation of evidence of the witnesses which was before the Enquiry Committee that too by substituting the opinion of the Enquiry Committee or the Management (See Shivaji Education Society v. Presiding Officer, School Tribunal (supra), Union of India v. Subrata Nath (supra), Thapar education Society v. Shyam Maroti Bhasarkar (supra) and Deputy General Manager v. Ajai Kumar Srivastava (supra)).
52. It would also be relevant to refer to the decision of this Court in Kandivli Education Society vs Narayan Eknath Lokegaonkar (supra), where this Court in context of scope of interference in enquiry committee has held as under:
"9. Once it is accepted that the constitution of Enquiry Committee and conduct of departmental proceedings was in accordance with statutory provisions and further there was no breach in adherence with principles of natural justice and fair play, the scope of interference with the findings of fact recorded by such an Enquiry Officer, is quite limited. The School Tribunal, in such matters does not act as an appellate authority but is expected to exercise powers of judicial review or powers akin to that of judicial review. The School Tribunal would be well within its jurisdiction to interfere where there is breach of statutory provisions and failure to adhere with the principles of Patil-SR (ch) 27 of 58 wp 12378-19.doc natural justice and fair play. The School Tribunal can also interfere with the findings of fact, provided such findings are perverse. Perversity can, inter alia, arise in situation where finding of fact is not supported by any evidence on record or is totally contrary to the weight of evidence on record. Perversity can also arise in a situation where legitimate evidence has been illegitimately shut out or where illegitimate evidence has been let in, contrary to settled legal provision and principles. The findings of fact can also be characterised as perverse, where such findings are such as no legally trained persons, could ever have arrived at based upon material on record. All this is ofcourse illustrative. Nevertheless, it is settled position in law that an authority exercising powers of judicial review or powers akin to judicial review, will not normally appreciate or re- appreciate evidence, as if it were an appeal Court. As long as finding of fact is borne out by some evidence on record, such finding will not be interfered with either on the grounds of insufficiency of evidence or because some other view is also a possible one."
53. The scope of interference would be restricted to cases where there is breach of statutory provisions, failure to adhere to principles of natural justice and where there is perversity of findings. The issues framed by the School Tribunal regarding the fairness of the enquiry, perversity of findings and proportionality of penalty would demonstrate that the School Tribunal confined itself to the right issues lying squarely within its jurisdiction.
54. Before proceeding to merits of the matter, a brief advert to the relevant Rules is necessitated. An employee is liable to be punished under Rule 28 of MEPS Rules one one or more of the following grounds i.e. (a) misconduct, (b) moral turpitude (c) wilful and persistent negligence of duty and (d) incompetence which are defined therein. Rule 29 provides for the penalties to be imposed on the delinquent Patil-SR (ch) 28 of 58 wp 12378-19.doc employee and Rule 31 classifies the penalties in minor and major penalty. A reduction in rank and termination of service is classified as major penalty whereas reprimand, warning, censure, withholding of increment and recovery from pay for pecuniary loss caused due to negligence or breach of orders are classified as minor penalty. Rule 32 gives an indication of the lapses which would invite minor penalties such as delay in disposal of assignments, negligence of duty, insubordination, disobedience of orders of superiors and misconduct or misbehaviour of similar nature. For the purpose of inflicting major penalty of reduction in rank or termination of service, enquiry is a must. The enquiry is required to be conducted by the Enquiry Committee properly constituted as prescribed under Rule 36 of MEPS Rules which provides that the members of the Enquiry Committee should comprise of one member who will be President of Management, one nominee of the Employee and one member chosen by the President from the panel of Awardee Head Master.
55. The School Tribunal on the aspect of fairness of enquiry has held against the Petitioner on the ground of the defect in constitution of Enquiry Committee by reason of inclusion of a practicing Advocate who was an Awardee Teacher as Management nominee and the Presenting Officer acting in dual capacity as prosecutor and witness. Ms. Kanade in all fairness has not advanced any submission to justify both these Patil-SR (ch) 29 of 58 wp 12378-19.doc findings of the School Tribunal. The School Tribunal by equating the member of the Enquiry Committee with the legal practitioner espousing the cause of one of the party to the enquiry and thereby applying the bar under Section 14 of MEPS Act has clearly fallen in error. Section 14 of MEPS Act bars a legal practitioner from appearing on behalf of the parties and the bar does not operate against a member of Enquiry Committee who otherwise satisfies the criteria of Rule 36. Similarly the issue as to whether the Presenting Officer acting as witness for the Management can vitiate the enquiry was considered by Calcutta High Court in S.V.S Marwari Hospital vs State of West Bengal (supra), holding that if the delinquent employee has suffered any real prejudice by reason of the Presiding Officer acting as witness, the enquiry will possibly be held to be vitiated. The Calcutta High Court has taken the right view and this Court concurs with the view. The Presenting Officer espouses the cause of the Management and thus there is no conflict which will bar the Presenting Officer from becoming witness for the Management. As held by Calcutta High Court unless real prejudice is demonstrated, the enquiry cannot be held to be vitiated and in the present case, no prejudice is demonstrated.
56. However, the School Tribunal has not rested its findings only on the above two grounds and has further held that the Respondent No 4 was not furnished with copy of documents relied upon by the Patil-SR (ch) 30 of 58 wp 12378-19.doc Management i.e. copy of the Compact Disk and true copies and extracts of registers, not allowing the Respondent No 4 nominee of his choice, not furnishing copy of the audit report of 1997-2014. The School Tribunal has further held that no proper opportunity was given to the Respondent No 4 to defend himself as the Presenting Officer merely produced the documents and offered herself for cross examination without examining any witnesses and the Respondent No 4's proposed witnesses were saddled with the condition of applying for leave to appear.
57. One of the facets of principles of natural justice includes affording of reasonable opportunity to the delinquent employee of defending himself which takes within its fold furnishing of all documents relied upon by the Management and extending full co- operation to enable the Respondent No.4 to effectively defend himself by making available documents sought by the Respondent No.4 which is in possession of the Management and taking steps to ensure that proposed witnesses of the employee can attend the enquiry. It needs to be noted that in cases of disciplinary enquiry and especially if the employee is under suspension, the evidence for the defence would usually consists of the official records and the proposed witnesses would be other employees, all of which are under the control of the Management. The decision of Sulochana Daulatrao Thakare v.
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Sangam Shikshan Sanstha (supra) is inapplicable as in that case the constitution of Enquiry Committee was before receipt of written explanation and in that context it was held that the said action did not cause any prejudice to employee.
58. Rule 37(2)(a)(ii) and (iii) of MEPS Rules governing the procedure of enquiry reads thus:
"37(2)(a) Within 10 days of receipt of copies of charge-sheet and the statement of allegations by the employee or the Head, as the case may be:-
(ii) If the Management and the employee or the Head, as the case may be, desire to examine any witnesses they shall communicate in writing to the Convenor of the Enquiry Committee the names of witnesses whom they propose to so examine, and
(iii) If the Management desires to tender any documents by way of evidence before the Enquiry Committee, it shall supply true copies of all such documents to the employee or the Head, as the case may be. If the document relied upon by the Management is a register or record of the school it shall permit the employee or the Head as the case may be, to take out relevant extracts from such register or record. The employee or the Head as the case may be, shall supply to the Management true copies of all the documents to be produced by him in evidence."
59. To achieve the end of ensuring fairness by making the other party aware of the exact case to be met, the exchange of documents and list of witnesses is required to be completed within a period of 10 days of receipt of copies of charge-sheet and statement of allegations by the employee i.e. before the commencement of the meetings of the Enquiry Committee. In the present case, the Statement of allegations Patil-SR (ch) 32 of 58 wp 12378-19.doc was communicated to the Respondent No.4 on 1 st October 2014 enclosing documents numbering 29 and the charge-sheet was served on 31st October 2014. As far as witnesses proposed to be examined are concerned, the Management repeatedly submitted that they do not propose to examine any witness.
60. In the first round of litigation, the termination order was set aside and matter was remanded by order dated 16 th February 2016 to the Enquiry Committee for fresh enquiry from the stage of submission of documents and witness list. The order of School Tribunal dated 16 th February, 2016 records that the Respondent No 4 went on hunger strike and in view thereof did not attend the enquiry sitting and therefore the Respondent No 4 could not get an opportunity to produce his evidence and cross examine the witnesses of the Management. The matter was remanded for fresh enquiry to ensure an opportunity to the Respondent No 4 to defend his case as it was held that the Enquiry Committee did not follow the procedure to give opportunity to the Respondent No 4 to defend himself and produce his evidence.
61. The order of the School Tribunal remits the matter to the Enquiry Committee from stage of submission of documents and witness list. Thereafter by communication dated 23rd March 2016, the Management informed the Respondent No.4 that in addition to previous documents, Patil-SR (ch) 33 of 58 wp 12378-19.doc the Management will rely upon three member committee enquiry report dated 3rd January 2015 appointed by the Deputy Director of Education. In the said communication, the Management re-iterated that apart from the documentary evidence the Management does not wish to examine any witness.
62. As the order of remand was specific from the stage of submission of documents and list of witnesses, it was not open for the Management to tender additional documents in the second round after remand. A statement/chart has been produced by Ms. Kanade setting out the documents produced along with the Statement of Allegations and the additional documents produced alongwith letter dated 23rd March, 2016. The documents which did not form part of the Statement of Allegations were the Attendance Register of October, 2013, extract from Attendance Register for June 1997 to September 1997, April 1998, April 1999 and May 2008, increase in number of pages of purported wrong time table, appointment order of Kiran Singh and order dated 14th May, 2013 imposing minor penalty. Though not permitted to furnish any additional documents, the communication dated 23rd March, 2016 while ostensibly referring to only the report of three member Committee being added, has surreptitiously sought to include additional documents. Apart from the above, during the cross examination of Respondent No.4, the Management has produced Patil-SR (ch) 34 of 58 wp 12378-19.doc thumb impression report for October 2012 and April 2013, revised minutes dated 23rd July, 2015 of hearing held by Education Officer on 30th April, 2015, the Compact Disk and transcript of abusive language and List of Documents submitted by the Management.
63. The Management has relied upon the above documents in support of its charges and it is not shown that the documents were irrelevant to the enquiry (See Abha Chawla Mohanty v. The Oriental Insurance Co. Ltd (supra)). Having relied upon those documents to bring home the guilt of the delinquent employee, Rule 37 mandates furnishing the copies of the documents in advance to the Respondent No 4. Rule 37 of the MEPS Rules provides that if the document relied upon by the Management is a Register of Record of the School, headmaster is to be permitted to take out relevant extracts from such Registers or record. For the headmaster to take out the relevant extract, it was necessary that the true copies of such documents be furnished to the headmaster before the commencement of the enquiry.
64. Perusal of the minutes of 24 th meeting would indicate that the Respondent No.4 had sought copy of the Compact Disk, however the same was not made available to the Respondent No 4 and the Enquiry Committee had directed no questions on the Compact Disk to be asked in the said meeting and to proceed further. Although the cross-
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examination on the Compact Disk was deferred by the Enquiry Committee, the Enquiry Committee has thereafter relied upon the Compact Disk to come to a finding that the charge of use of abusive language by the Respondent No.4 is proved. The relevancy of the documents not having been disputed, there was clear non compliance of Rule 37 of MEPS Rules.
65. As far as list of witnesses is concerned, the Management prior to the commencement of enquiry and even in initial stage of enquiry, had taken a definite stand that it did not want to examine any witness and will be relying only upon the documents. Thereafter, in clear breach of the Rules, the Enquiry Committee permitted the Management to lead evidence. The Management did not lead any evidence and only produced documents, with the Presenting Officer offering herself for cross-examination. The refusal of the Respondent No.4 to cross examine the Presenting Officer is being put forth to support the Petitioner's case that proper opportunity was given to the Respondent No.4.
66. Rule 37(2)(c) provides that the Enquiry Committee shall see that every reasonable opportunity is extended to the employee for defence of his case. The Respondent No.4 was charged with misappropriation of funds by including payment of rent to the Trust of Rs 24,000/ in the audit report of academic year 2011-12 which is stated to be not Patil-SR (ch) 36 of 58 wp 12378-19.doc received by the Trust. The Audit Report was indisputably in the possession of Management and the Respondent No 4, though requested for copy of the Audit Report of the Trust, the same was not made available to the Respondent No 4. The audit report of the Trust would be crucial document for the defence as the reflection of Rs.24,000/- as amount received by the Trust would have negated the charge of misappropriation of funds.
67. The Respondent No.4 had examined two employees, namely, Kiran Singh and Pooja Singh and had sought to examine four more witnesses, who were employees of the School. The witnesses were however saddled with the condition of obtaining leave for attending the enquiry. The condition was clearly imposed to discourage the witnesses from deposing in favour of the Respondent No.4. A grievance to that effect was made by Respondent No.4 in the letter dated 17th September 2016 (N-36) concerning the witnesses intimidation as the teachers were not allowed to attend the enquiry. A specific allegation was levied that the proposed witness Anil Singh was prevented from giving evidence in the school premises. As regards the other employees proposed to be examined by the Respondent No.4, the Presenting officer in response to the communication dated 17 th September 2016 (N-36) informed the Convener of Enquiry Committee that if any employee wishes to appear as witness then he needs to take Patil-SR (ch) 37 of 58 wp 12378-19.doc leave so that alternate arrangement can be made. Rule 37(2)(c) of MEPS Rules casts a duty on the Enquiry Committee to ensure that every reasonable opportunity is extended to the employee for defence of his case. It was open for the Enquiry Committee to schedule the meetings at such time and on such dates which will ensure the presence of witnesses. The School Tribunal has therefore rightly held that the witnesses being saddled with condition of obtaining leave to appear before the Enquiry Committee resulted in denial of opportunity to the Respondent No.4. The School Tribunal has rightly answered the issue of fairness of enquiry against the Petitioner.
68. As far as the delinquent employee not being allowed nominee of his choice, Rule 36 of MEPS Rules which prescribe the constitution of Enquiry Committee ensures equality of representation as the Management as well as the delinquent employee is entitled to nominate a member of its/his choice satisfying the criteria on the Enquiry Committee. Although, the Respondent No.4 was not permitted to change his nominee, no prejudice has been shown by reason of the same.
69. Coming now to the charges imputed to the employee, the imputations contained in the Statement of Allegations are as under:
"1) It is alleged that being Ex.officio secretary of the school committee you have violated rules by not conducting any meetings within two months as per the rules. When the managing Patil-SR (ch) 38 of 58 wp 12378-19.doc trustee took initiative and scheduled meeting dated 04/10/2013 you were present in the school but you skipped meeting without stating any reason. Which is unlawful and severe act of irresponsibility.(copy attached page no.1-2)
2) It is alleged that you are not using biometric machine for the daily attendance, which is installed in the school premises since September 2012 by school management for maintaining the transparency in attendance. You have also told some of your teachers not to use biometric machine for attendance. Thus you are violating code of conduct. It is also alleged that the management had given you the letter dated 06/05/2013 to check the printed report of the attendance generated through the biometric machine for 06/05/2013 to 31/03/2014 to verify detailed information about the attendance of the teachers but till date there is no reply from your side to the above mentioned letter. Whereas you have cleared salary bills in-spite of knowing that you have not updated management about the attendance (page no. 3-8).
3) It is alleged that you have made a wrong time-table and also brought it into the daily practice. You have caused the academic losses to the pupil by practicing same time table for several years.
(page no.9-10)
4) It is alleged that you have violated the rules by making a new teacher attendance muster in-spite of the old one being in condition, to hide the irregularities in the daily attendance of yourself and teachers. (To be relied on original muster)
5) It is alleged that you have mentioned in an audit report of academic year 2011-2012 that you have paid Rs.24,000 to the trust (Mandal) as a rent. Trust has not received this amount by any means. The management was informed that some collection was made from the students of 9th A and 9th B @ 50/- and management asked you to enquire and disclose the collection of this amount, you informed that the teachers have not collected any money from the students but Mr. Ravindra Pratap Singh, a teacher in the school has given in writing that the money was collected by one of the teacher of Hindi secondary section from the students. This shows that you have given a false declaration it has also come to notice that you have submitted wrong payment bills by claiming salary of an assistant teacher for a shikshan sevak. Thus above incidences shows that you are involved in misappropriation of Patil-SR (ch) 39 of 58 wp 12378-19.doc funds.(page no. 11-18)
6) It is alleged that you have been found using abusive, filthiest and unconstitutional language against the employees of the institution especially females. It is a very shameful act and being teacher and principal you are doing it. This shows that you lack moral conduct and interpersonal skills. (page no. 19-25) (In addition electronic proof to be relied upon).
7) It is alleged that you have not updated dead stock register, library register, O.D. register, log book, daily diary and so on. When management asked you to submit the above mentioned documents. You have not submitted. (page no. 26-29)
8) It is alleged that in-spite of being given a warning letter by management for not doing class observation, not putting attendance properly, not adhering to a work profile of a principal, you are still continuing to do so also you are not following the hierarchal protocol by directly contacting and making representative to the various authorities without discussing with management, which is unlawful. (To be relied upon school records)
70. The findings of the School Tribunal on the perversity of the findings of the enquiry Committee on the charges can be broadly summarized as under:
A] On Charge No.1:- Violation of Rules by not conducting meeting and not attending the meeting held on 4th October, 2013:
a) The Management has not examined any witness and the Presenting Officer merely placed on record list of documents offering herself for cross examination.
b) No memo or show-cause notice was given to Respondent No.4 for not attending the meeting at the relevant times, however his reply is anticipated and non reply held adversely by the Enquiry Committee Patil-SR (ch) 40 of 58 wp 12378-19.doc which demonstrates perversity.
d) The charge relates to negligence of duty, insubordination and disobedience warranting minor penalty.
B] On Charge No.2:, Non use of biometric machine and instructing Teachers to not use the biometric machine :-
(a) No witness was examined.
(b) The charge is in the nature of insubordination for which the Respondent No.4 was saddled with minor penalty of withholding the increment for the period 1st July 2013 to 30th June 2014 and for the same charge enquiry has been preferred and entertained.
C] On Charge No.3: Preparing of wrong time table :-
The charge is vague, there is no proof of how loss was caused to students and even if proved would entail minor penalty. D] On Charge No.4: Preparing new attendance register of teachers to hide irregularities.
a) No witness examined and no documents proved.
b) The charge pertains to negligence of duty and if proved would invite minor penalty.
E] On Charge No.5: Misappropriation of funds :-
a) Submission of wrong pay bills must be proved by written record about the amount claimed and disbursed by the State or the Education Department. There is no record produced and no witness examined. Though the Education Department is party to the Patil-SR (ch) 41 of 58 wp 12378-19.doc proceedings, it appears to be passive.
d) No witness has been examined to prove alleged collection of Rs.50/- from the students.
f) To constitute a specific charge, the allegations of corruption in terms of day, time and place are other material particulars are needed which are missing.
F] On Charge No.6,: Of use of abusive and filthy language :-
a) The allegations are general and vague.
b) Mere production of N.C and FIR without further proof does not
prove the charge.
c) Respondent No.4 has produced on record the judgment of acquittal dated 1st July 2017.
d) The transcript of Compact Disk placed on record was not supplied to the Respondent No.4 nor the same has been placed before the Tribunal.
e) Although charge is that abusive language was used against employees including the female employees, complaint is made by only one employee - Radhana Singh.
G] On Charge No.7 :Non updation of Registers :-
a) The allegations amounts to lapse on part of Respondent No 4 in not updating the registers for which minor penalty of withholding of the increment for one year from 1st July 2013 to 30th June 2014 was Patil-SR (ch) 42 of 58 wp 12378-19.doc imposed which evidences that the charge invites infliction of minor penalty.
H] On Charge No.8,: Not discharging duties as Headmaster :-
a) The allegations are vague and uncertain.
b) The charge is relatable to negligence of duty and comes within
the purview of minor penalty.
71. The burden was upon the Management to prove the charges on the touchstone of pre-ponderance of probabilities. Rule 37(d)(i) of MEPS Rules provide that the Management shall have the right to lead evidence and right to cross-examine the witnesses examined on behalf of the employee and Rule 37(d)(ii) provides that the employee shall have the right to be heard in person and lead evidence and he shall also have the right to cross-examine the witnesses examined on behalf of the Management.
72. In the instant case, a unique course was adopted by the Petitioner to prove the charges against the Respondent No.4. The Petitioner before the enquiry and during the first hearing of Enquiry Committee on 4th April 2016 adopted the stand that it does not wish to examine any witness and will rely only upon the documentary evidence. Way deep into the hearing, in the meetings of 8 th Septmber 2016 and 9th September 2016, during the evidence of Respondent Patil-SR (ch) 43 of 58 wp 12378-19.doc No.4, the Petitioner sought permission to lead evidence which was surprisingly granted by the Enquiry Committee and though permission was granted, no witness was examined and the Presenting Officer merely produced the list of documents and offered herself for cross- examination. In Ashok v. secretary, G S P Mandal (supra) this Court has held that the procedure of recording of employee's evidence before Management's evidence is irregular and not in conformity with Rules. The Court further held the failure to supply list of witnesses in advance is a serious flaw on part of the Management as well as the Enquiry Committee.
73. Though it cannot be disputed that the Presenting Officer can play the dual role of prosecutor and witness, in order to produce and prove documents, the Presenting Officer or some other witness has to step in the witness box and lead oral evidence. Without the documents being proved, the same does not constitute evidence. As no oral evidence was led, the Respondent No.4 was unable to cross-examine the Presenting Officer on the documents produced. To qualify as a witness for the prosecution, it was necessary for the Presenting Officer to lead oral evidence and prove the documents and it is no answer to say that the Presenting Officer had offered herself for cross- examination as without the documents being proved and constituting evidence, there was no question of Respondent No.4 exercising his Patil-SR (ch) 44 of 58 wp 12378-19.doc right of cross-examination. These very documents were considered as evidence by the Enquiry Committee to support its findings on proof of charges. (See Roop Singh Negi v. Punjab National Bank (supra)).
74. The School Tribunal has rightly held that the documents had to be proved before it can be accepted as evidence and if the Petitioner had examined witnesses, it could have extended the opportunity to Respondent No.4 to cross examine on the documents. The documents produced by the Presenting Officer are not confined to the records and registers of the School but also include the criminal complaints lodged by one of the teacher Radhana Singh and the report of members of Education Department. It was thus necessary to examine the concerned persons to prove the documents and give an opportunity to the employee to cross examine the witnesses to defend his case.
75. This is a classic example of "no evidence". The decision of the M/s. Banaras Electric Light and Power Co v. Labour Court (supra) in fact supports finding of the Tribunal that Enquiry Committee's findings are perverse based on "no evidence". The aspect of testing the case on pre-ponderance of probabilities would arise for consideration if there was evidence produced on record. In the present case, as there is no evidence produced, there is no question of the compliance with standard of pre-ponderance of probabilities. There is no quarrel with the proposition of law considered in President/Secretary Uttar Patil-SR (ch) 45 of 58 wp 12378-19.doc Bhartiya Education Society v. Naresh Tejan Thakur (supra), however, facts herein are distinguishable. The Enquiry Committee has accepted the documents produced on record as evidence and based its findings on the so called evidence which has been rightly interfered with by the School Tribunal. The School Tribunal has not exceeded its jurisdiction as it has not delved into the adequacy of evidence and re-appreciated the same but has sifted through the evidence to arrive at a conclusion of perversity of finding.
76. The School Tribunal has held that Charge No.1 i.e. not conducting the meetings, Charge No.2 i.e. not using biometric machine, Charge No 3 i.e. preparing wrong time table, Charge No 4 i.e. preparing a new attendance muster, Charge No 7 i.e. non updation of registers, and Charge No 8 i.e. not adhering to the work profile of Principal are vague charges and pertains to negligence of duty ensuing minor penalty.
77. Rule 32 of MEPS Rules gives an indication of lapses on part of employee which would incur minor penalty such as delay in disposal of assignments, negligence of duty, insubordination, disobedience of order of superiors and misconduct or misbehaviour of like nature. The School Tribunal has applied the correct principle to hold that the Charge No 1, 2, 3, 4, 7 and 8 are lapses amount to negligence of duty, insubordination, disobedience of orders of superiors. As regards Charge No 7 of non updation and submission of dead stock register, Patil-SR (ch) 46 of 58 wp 12378-19.doc daily diary etc, the Enquiry Committee has recorded that on the ground of negligence, insubordination and not obeying the orders of superiors, the Respondent No 4 has already been subjected to minor penalty of withholding increment for 1st July, 2013 to 30th June, 2014, which lends credence to the finding of the School Tribunal that the charge would invite minor penalty.
78. Rule 28 of the MEPS Rules provides for the punishment of an employee on one or more of the four grounds, namely, misconduct, moral turpitude, willful and persistent negligence of duty and/or incompetence. The Rule also describes each of these expressions in the following manner :
"a) "Misconduct" shall include the following acts, namely:
(i) breach of the terms and conditions of service laid down by or under these rules;
(ii) violation of the code of conduct; and
(iii) any other act of similar nature.
(b) "Moral turpitude" shall include the following acts, namely:
(i) immodest or immoral behaviour with a female or male student or employee; and
(ii) any other act of similar nature.
(c) "Wilful negligence of duty" shall include the following acts namely:
(i) dereliction in, or failure to discharge, any of the duties prescribed by or under these rules;
(ii) persistent absence from duty without previous permission; and
(iii) any other act of similar nature;
(d) "Incompetence" includes the following acts, namely:
(i) failure to keep up academic progress and up to date knowledge in spite of repeated instructions in that behalf and provisions of facilities;
(ii) failure to complete the teaching of the syllabus determined for the year within the fixed periods for reasons not beyond his control; and
(iii) any other act of similar nature."
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79. Coming to the charges imputed to the Respondent No.4, Charge No.1 and Charge No.2 are in the nature of insubordination and disobeying the orders of superior. Charge No.3 is of preparing the wrong time table, which is relatable to negligence of duty. Charge No.7 is as regards the non updation of records and Charge No.8 is of not adhering to the work profile of headmaster, which will fall in the category of minor penalty. Considering the charges framed, the School Tribunal has held that charges do not warrant major penalty. The School Tribunal has not interfered on the ground that the penalty is disproportionate to the charge but has considered the Rules to hold that the charge would invite minor penalty and not major penalty.
80. As far as the Charge No.5 of misappropriation of funds and Charge No.6 of using abusive and filthy language against the other employees especially females is concerned, the charges are serious and grave in nature, which if proved, would warrant imposition of major penalty. The Charge No 5 has three components first- Audit Report of School prepared showing payment of rent of Rs 24,000/ to the Trust, which was not received by the Trust, Second- unauthorised and unaccounted collection of Rs.50/- from students and Third- Claiming wrong salary bills by making wrong appointments. The Management seeks to establish this Charge on the basis of documents produced without examining any witness. The documents produced by the Patil-SR (ch) 48 of 58 wp 12378-19.doc Management is the Audit Report of the School showing payment of Rent of Rs 24,000/ to the Trust, copies of letters issued by the Management to the Assistant Teachers regarding collection of Rs 50/ from students, reply of one Assistant Assistant Teacher that one Anil SIngh had collected the amount, complaints lodged by Anil Singh against the Management, copy of approval letter of Pooja Singh for appointment as Assistant Teacher though she was Shikshan Sevak, copy of appointment letter of Kiran Singh and copy of attendance musters. Giving a complete go-by to the settled legal principles, the Enquiry Committee has based its findings on these unproved documents.
81. As regards proof of Charge No.5, only the audit report of the school showing the payment of Rs.24,000/- made to the trust was produced. However, no witness was examined from the trust even to orally depose that the trust had not received the amount of Rs.24,000/-. Even if it is accepted that the documents could be looked into as proof of the charge, to prove the said charge, even on the test of preponderance of probabilities, it was necessary to produce the audit report of trust for the corresponding period to show that no such amount was received in the accounts of trust. Merely relying upon the audit report of school without anything further to corroborate that the money has not been received by trust and without any witness Patil-SR (ch) 49 of 58 wp 12378-19.doc stepping into the witness box to testify the same, it cannot be said that the charge has been proved. The next leg of misappropriation of funds is the collection of Rs.50/- from the students. Nothing has been produced on record to show that the money was collected by the Respondent No.4 or at his instance. Even the communication addressed by teacher Ravindra Pratap Singh is not proved by examining the said teacher. On the other hand, the Respondent No.4 has deposed about the complaints received from the parents that the management has forced them to give a false communication that amount of Rs.50/- was paid, and produced letters from parents. As far as submission of wrong payment bills for claiming the salary of assistant teacher is concerned, nothing has been brought on record to show misappropriation of funds. The perversity in the findings has rightly being brought to the fore by the School Tribunal by correctly observing that no witness has been examined and though Department is party to the proceeding, there is no action on part of Department. It has further held that no witness has been examined to prove collection of Rs 50/ from students, Auditor not examined and there is no charge of submission of false pay bills.
82. The School Tribunal has not reversed the findings of the Enquiry Committee by weighing the adequacy of evidence but has interfered as the findings were based on no evidence. The Enquiry Committee has Patil-SR (ch) 50 of 58 wp 12378-19.doc completely erred in permitting the documents to be produced in evidence without the documents being proved in a manner known to law. Perversity of findings arises where the findings are based on no evidence and in the present case, the School Tribunal has rightly held that the findings of the Enquiry Committee on proof of Charge No 5 is perverse.
83. As far as Charge No.6 is concerned about use of abusive and filthy language, the Management has produced the FIR, complaints lodged by the Teacher Radhana Singh with the Management and the Compact Disk. The copy of Compact Disk was not supplied to the Respondent No 4 and therefore the Enquiry Committee could not have relied upon the same. Further the Enquiry Committee had in the 24 th Meeting directed that no questions be asked on the Compact Disk in the said meeting and it is admitted that copy of Compact Disk was not made available and no questions were permitted to be asked. The Enquiry Committee has relied upon the N.C filed by Radhna SIngh, copy of complaint filed by Radhana Singh, warning letter given to the Respondent No 4, copy of FIR and transcript of Compact Disk recording. In the absence of supply of copy of the Compact Disk and restriction on the cross examination of the Respondent No 4 based on the Compact Disk, the Enquiry Committee could not have based its findings on the recording contained in the Compact Disk. The Patil-SR (ch) 51 of 58 wp 12378-19.doc complaints by Radhana Singh were produced by Management without examining Radhana Singh as witness and accepted by the Enquiry Committee. The School Tribunal has held that the Management was imposed with the obligation to prove the charge as only in event of conviction it could have been discharged from the obligation to conduct enquiry as per Rule 33(6) of MEPS Rules and the charge has not been proved. It is well settled that complaint cannot be read in evidence without examining its author and without offering him / her for cross-examination by the delinquent employee. (See Vidya Vikas Education Society v. Sunil Gulabrao Wadatkar (supra)).
84. Along with the statement of allegations, the Petitioner had enclosed certain documents on which reliance was placed during the enquiry. As far as Charge No.1 is concerned, the document annexed is the minutes of meeting dated 4 th October 2013 which was a single meeting. In support of Charge No.2, the documents relied upon are communication by management seeking certain clarification, communication dated 30th May 2008 by Assistant Education Inspector seeking explanation and communication by Respondent No.4 expressing regret for the deficiency, notices for thumb impression and communication asking for the report of thumb impression. In support of Charge No.3, the time table for the academic year 2013-2014 has been annexed. However, there is no evidence to substantiate the Patil-SR (ch) 52 of 58 wp 12378-19.doc manner in which the said time table has caused academic loss to the pupils. As far as Charge No.4 is concerned, the statement of allegations states that reliance will be placed on original muster, without providing any details of the period during which the alleged new attendance muster was prepared by Respondent No.4. As far as Charge No.5 is concerned, the copy of audit report is enclosed to the statement of allegations and in respect of collection of Rs.50/- from the students of 9th standard, the complaint of teacher Ravindra Pratap Singh was annexed. As far as submission of wrong payment bills is concerned, the documents from the Education Inspector dated 23 rd March 2009 granting approval to teacher have been enclosed. Insofar as Charge No.7 is concerned, the documents annexed refer to the communication between the management and the headmaster. It does not contain the extracts of registers or details in respect of the same. As regards the charge of insubordination, the statement of allegations provides that the reliance will be placed on the school record, however, no copies of record were furnished.
85. In Anant R. Kulkarni v. Y P Education Society (supra) the Apex Court had held that the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. The statement of allegations does not give specific details of the charge and notably the Patil-SR (ch) 53 of 58 wp 12378-19.doc documents annexed in support of the charges do not state the required details. The whole purpose of issuing Statement of Allegations is to make the delinquent employee aware of the exact case which the employee has to meet. The statement of allegations are therefore required to be clear and precise with the relevant dates and period mentioned therein. Item No 1 of Statement of Allegations refers to non conduct of meetings, Item No 3 is in respect of wrong time table being prepared, Item No 4 is in respect of new teacher attendance muster being prepared, Item No 5 refers to unauthorised unaccounted collection of Rs.50/- from students, Item No 6 refers to use to abusive language against the employees especially females, Item No 7 refers to non updation of registers and Item No 8 refers to insubordination by not adhering to work profile of principal. The nature of the charges stated above will substantiate the need for specific details as regards the time period during which the acts of negligence, non updation etc have taken place which has not been mentioned. The vagueness of the allegations prejudiced the Respondent No 4 as no details were provided to enable him to put forth his explanation.
86. Although it is well settled that the provisions of Evidence Act are not applicable to the departmental proceedings, it is necessary to comply with the principles of natural justice. It is also further necessary that inferences on facts must be based on evidence meeting Patil-SR (ch) 54 of 58 wp 12378-19.doc the requirement of legal principles. For the purpose of arriving at a finding of guilt of charge-sheeted employee, it is necessary that there must be some evidence on record based on which the test of preponderance of probabilities could have been complied with. It is also well settled proposition that adequacy of evidence cannot be gone into. However, the present case is case of no evidence.
87. On the aspect of reinstatement with back wages is concerned, the School Tribunal has held as under:
(a) The enquiry was not fair and proper and the findings are perverse and contrary to law. The penalty of termination has been imposed without detailed charges or without any of the charge proved before the Enquiry Committee. The Appellant is therefore entitled to the benefit of continuity of service with all emoluments as per law.
(b) The Petitioner - Management has alleged that the Respondent No.4 is gainfully employed in Hansa International School and has produced photographs showing the presence of Respondent No.4 in the said school. There is no affidavit of Petitioner-Management about the gainful employment of Respondent No.4. Mere presence of the Respondent No.4 in photographs will not prove the gainful employment in the said school. The Petitioner - Management has not examined any witness nor proved any document through witnesses.
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88. The Petitioner had specifically averred that the Respondent No.4 was gainfully employed in Hansa International School and had produced photographs. It is also specifically averred that the Respondent No 4 was called upon vide letter dated 19 th September, 2016 to submit an Affidavit that he is not gainfully employed. In the Affidavit in rejoinder filed to the written statement, the Respondent No 4 has pleaded that he has never taken up any gainful employment and that he was invited to Hansa International School as Guest of Honour. The School Tribunal has held that the photographs produced by the management to show that the Respondent No.4 was gainfully employed with Hansa International School will not suffice the purpose and it was open for the management to take further steps to prove the evidence of gainful employment of the Respondent No.4.
89. In the Affidavit-in-rejoinder filed before the Tribunal, the Respondent No.4 has pleaded that he was not gainfully employed.
Further by way of communication dated 23rd September, 2016 in response to the letter dated 19th September, 2016 by the Petitioner calling upon him to submit an Affidavit, the Respondent No.4 has stated that he is not engaged in any gainful employment since his suspension from 1st December, 2014. The settled position is that the employee must plead that he had not worked during the period when he was kept out of employment by illegal termination. The onus then Patil-SR (ch) 56 of 58 wp 12378-19.doc lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. [See Deepali Gundu Surwase vs Kranti Junion Adhyapak Mahavidyalaya (supra)]. The decision in Rajasthan State Road Transport Corporation v. Phool Chand (supra) reiterates the position in law as enunciated in Deepali Gundu Surwase (supra). The School Tribunal has rightly held that no evidence has been adduced by the Petitioner to prove the employment of the Respondent No.4.
90. The charges imputed to the Respondent No 4 was substantially pertaining to negligence of duty and insubordination inviting minor penalty. To add gravity to the charges, the charge of misappropriation of funds and use of abusive language was added. None of the charges stood proved as for some strange reason the Petitioner did not prefer to examine any witness and only documents were produced. The services came to be terminated without there being an iota of evidence. The Tribunal has held that Petitioner has inquired twice on the same charges and had terminated the Respondent No 4 twice on such enquiry and except Charge No 5 for misappropriation and Charge No 6 for moral turpitude, none of the charges had potential to incur major penalty, if proved. The enquiry was not fair and proper and in violation of the statutory provisions. The Tribunal has therefore rightly granted reinstatement with back wages. In view of the findings of the Patil-SR (ch) 57 of 58 wp 12378-19.doc Tribunal that the charges were unwarranted and resulted in keeping the Respondent No. 4 out of service for 5 years, I am not inclined to interfere with the order of costs.
91. In the light of above, the Petition fails and stands dismissed. Rule is discharged.
[Sharmila U. Deshmukh, J.]
92. When the matter was pronounced in the morning session, none was present on behalf of the Petitioner. In the afternoon session, the matter is mentioned and request is made for stay of the present judgment. The said request is opposed by the learned counsel for the Respondent No.4. As there was no stay which was operating during the pendency of petition, I am not inclined to stay the present judgment. It also needs to be noted that despite there being no stay, the Petitioner has not implemented the order of the School Tribunal and has kept the Respondent No.4 out of service since 2019.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) 58 of 58
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 02/12/2024 20:03:01