Bombay High Court High Court

Ku. Sudarshani vs Unknown on 3 April, 2009

Bombay High Court
Ku. Sudarshani vs Unknown on 3 April, 2009
Bench: J. H. Bhatia
                                                     


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH AT NAGPUR




                                                                                               
                        WRIT PETITION NO. 1347/2001
          Ku. Sudarshani d/o Damduji Thool,




                                                                       
          aged 44 years, r/o D. S. Taksande, Vikramsheela
          Nagar, Near Baraf Karkhana, Wardha.
                                                       .....PETITIONER
                          ...V E R S U S...




                                                                      
    1.    The Presiding Officer,
          Additional School Tribunal,
          Nagpur (Chandrapur)




                                                        
    2.    Savitribai Fule Shikshan Prasarak Mandal,
          Wardha, through its Secretary-Sau. Archana
                                      
          Arun Choudhari, Sainagar, Wardha.

    3.    The President - Shri Wamanrao Baliram
                                     
          Choudhari, r/o New Subhedar Layout,
          Behind Gajanan Mandir, Nagpur.

    4.    Shri Arun Choudhari, Director, Savitribai Fule
            


          Shikshan Prasarak Mandal, Sai Nagar Wardha.
         



    5.    Shri Ashok s/o Haribhau Choudhari, Trustee,
          Savitribai Fule Shikshan Prasarak Mandal, Wardha





    6.    Shri Vinayak Govindrao Dandekar,
          Hind Nagar, Near Samudre's House, Wardha

    7.     The Education Officer, (Secondary),
           Zilla Parishad, Wardha.                                        .....RESPONDENTS





    -------------------------------------------------------------------------------------------------
    Mr. B. H. Shambharkar, Advocate for petitioner.
    Ms. A. R. Taiwade, A.G.P. for respondent nos. 1 and 7.
    Mr. R. M.Ahirrao, Advocate for respondent nos. 2 to 4.
    -------------------------------------------------------------------------------------------------




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                                  CORAM:- J. H. BHATIA, J.

DATE:- 3rd APRIL, 2009

ORAL JUDGMENT

1. Heard learned counsel for the parties. The petitioner

was, admittedly, working as Head Mistress of Savitribai Fule

Vidyalaya, at Masod, dist. Wardha. The School is run by respondent

no. 2-Savitribai Fule, Shikshan Prasarak Mandal. An enquiry was

initiated by the Management against the present petitioner and in all

twenty two charges were levelled against her. Enquiry Committee was

constituted consisting of representative of Management, representative

of delinquent Head Mistress and a State Awardee Head Master. After

enqiry, report was submitted by said Committee. As per that report,

representative of the Management on the enquiry committee held that

out of twenty two charges, one charge was not proved while twenty

one charges were proved. As per finding of the State Awardee Head

Master, out of twenty two charges, only nine charges were proved

while according to representative of the delinquent employee, no

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charge was proved. On the point of punishment also members of the

enquiry committee could not come to any unanimous decision while

representative of the Management recommended that major penalty

should be imposed, the State Awardee Head Master recommended

that minor penalty should be imposed and consistent to his own

finding, representative of the delinquent employee came to the

conclusion that no penalty should be imposed. As such, majority of

enquiry committee members had agreed that nine charges were

proved. As the enqiry Committee could not prescribe any punishment

unanimously, report was submitted to the Management and after

looking into the report, the Management passed an order, reducing the

petitioner’s rank i.e. from the post of Head Mistress to the post of

Assistant Teacher. That order was challenged by the petitioner before

the School Tribunal in Appeal No. STN 26/1999. After hearing the

parties, the School Tribunal dismissed the appeal by impugned

judgment dated 31.10.2000. That order is challenged in the present

petition.

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2. Section 4 (6) of the Maharashtra Employees of Private

Schools (Conditions of Service) Regulation Act,1977 (For short the

“Act”) provides that no employee of the private school shall be

suspended, dismissed or removed or his services shall not be otherwise

terminated or he shall not be reduced in rank by the Management

except in accordance with the provisions of the Act and Rules made in

that behalf. The penalties are classified as minor penalties and major

penalties in Rule 31 of Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981 (For short the “Rules”). Minor

penalties are; (i) reprimand (ii) warning (iii) censure (iv) withholding

of an increment for a period not exceeding one year (v) recovery from

pay or such other amount as may be due to him of the whole or part of

any pecuniary loss caused to the Institution by negligence or breach of

orders. The major penalties are (i) reduction in rank (ii) termination

of service.

3. For inflicting the major penalties, the procedure is laid

down under rules 33 to 37 of the Rules. Rule 37 (6) provides that

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after obtaining explanation of delinquent employee and after

completion of enquiry, the enquiry committee shall communicate its

findings on the charges against the employee and its decision on the

basis of those findings to the Management for specific action to be

taken against the employee or the Head as the case may be. It also

provides that the decision of the enquiry committee shall be

implemented by the Management by issuing necessary orders within

seven days from the date of receipt of decision of the enquiry

committee. From this, it is clear that the decision about the penalty,

on the basis of the findings, has to be taken by the enquiry committee

itself and that decision has to be communicated to Management. The

Management has to implement that decision. The Act and the Rules

do not give powers to the Management to take decision as to what

punishment or penalty should be imposed on the basis of finding of

the enquiry committee.

4. In the present case, as indicated above, there was no

unanimity amongst the members of the enquiry committee in respect

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of findings as well as penalty. The representative of the Management

found that twenty one charges were proved while State Awardee Head

Master held that nine charges were proved. Admittedly those nine

charges were also included in the twenty one charges, which ware

found to be proved by representative of the Management. Therefore,

it can be held that out of three members of the enquiry committee,

two members were unanimous that those nine charges were proved.

So it may be held that, by majority of two against one it was held by

the enquiry committee that nine charges are proved. About the other

charges, which were proved according to the representative of the

Management, it must be held that the findings were defeated by two

against one. The members of the enquiry committee also did not

come to a decision about penalty, which could be given. According to

representative of Management, major penalty should be given but it

was not acceptable to the other two members. The State Awardee

Head Master found that minor penalty should be imposed. In view of

this, the Management took upon itself to decide what penalty should

be imposed. Accordingly, punishment of reduction in rank from the

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post of Head Mistress to the Assistant Teacher was awarded but this

could not have been done by the Management in view of the Rules.

5. In Kashiram Rajaram Kathane ..vs.. Bhartiya R. B. Damle

Gram Sudhar Tatha Shikshan Prasar Society and others; 1997 (3) Mh.

L. J. 235, the Division Bench of this Court in para 6, observed as

under:-

“6. In this case, a reading of Rule 37 (6) would
show that the Committee constituted was the

enquiring authority as well as the final decision
making authority in the sense that the management’s
role was only to implement the decision of the

enquiry Committee. Therefore, the role of the

Committee cannot be treated as only
recommendatory Thus, the Committee really is the

decision making authority who was to take evidence
and adjudicate the matter. When the nature of
character of the Committee is so understood, the
whole proceeding must be consistent with the

principles of natural justice.”

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From this, it is clear that the enquiry committee is not

only the enquiring authority but also final decision making authority

and the decision of that enquiry committee has to be implemented by

the Management. The Management has no other role in the enquiry.

6. Section 4A of the Act, which is helpful in resolving the
controversy involved in the matter, reads as follows :-

“4A. (1) Notwithstanding anything contained in sub-

section (6) of section 4 or any other provisions of this
Act or the rules made thereunder, where in any case

of alleged misconduct or misbehaviour of a serious
nature or moral turpitude of an employee-

(a) an enquiry is held by an enquiry Committee into

such allegations and the Director is of the opinion

that the enquiry Committee has unreasonably
exonerated the employee, he may call for and

examine the record and proceeding of such enquiry
for the purpose of satisfying himself as to the
correctness of the decision on the basis of its
findings, and may either annul, revise, modify or

confirm the said decision or may direct the Enquiry
Committee to make further enquiry for taking such
additional evidence as they may think necessary or

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he may himself take or authorise any other officer

not below the rank of the Education Officer to take
such additional evidence; and while making an order

under this clause, if the director is satisfied that the
charges of serious misconduct, misbehaviour or as
the case may be, moral turpitude have been

substantially proved, he shall direct the Management
to impose on such employee any of the penalties as

specified in sub-section (4):

Provided that, the Director shall not record any

order under this sub-section without giving the party

affected thereby and the Management an opportunity
of being heard.

(b) the Management has either neglected or refused

to hold an enquiry against such employee in

accordance with the provisions of this Act and the
rules made in that behalf, the Director shall direct
the Management to initiate action within thirty days

from the receipt of such directions for holding
enquiry into the allegation against such employee
and to complete the same in accordance with such

provisions and rules.

(2) Where there is a failure on the part of the
Management to initiate action as directed under

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✠☛✡

clause (b) of sub-section (1) to hold an enquiry and

to complete the same within the period prescribed
under the rules the Director may himself hold or

direct any officer not below the rank of Education
Officer to hold, such enqury.

(3) While holding an enquiry the Director or the

officer authorised by him shall follow the same
procedure as is followed by the enquiry Committee

under the rules made under this Act as if the Director
or the officer so authorised were an Enquriy

Committee for the purpose of holding such enquiry.

(4) On holding such enquiry by the Director himself
or on receipt of the report of the Enquiry officer, if
the Director is satisfied that the charges of serious

misconduct, misbehaviour or, as the case may be,

moral turpitude have been substantially proved, he
shall, by an order in writing, direct the management
that a penalty of dismissal, removal from service,

termination of service, or as the case may be,
reduction in rank as he may, in the circumstances of
the case deem fit, be imposed on the employee

concerned:

Provided that, no such order shall be passed by
Director unless the employee and the Management

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concerned are given a reasonable opportunity of

showing cause against the proposed order.
(5) The order of the Director under clause (a) of

sub-section (1) or sub-section (4) shall be binding on
both the Management and the employee and the
same shall be complied with by the Management

within such period as may be specified by the
Director.”

7.

From clause (a) of sub section (1) of section 4A, it

becomes clear that were there are allegations of misconduct or

misbehavour of serious nature by an employee and an enquiry has

been held and enquiry committee has unreasonably exonerated the

employee, the Director of Education may call the record and if

necessary give directions to the enquiry committee to make further

enquiry by taking additional evidence or he may himself take

additional evidence or may direct the Education Officer to take

additional evidence and if he finds that the charges of serious

misconduct misbehaviour or moral turpitude have been substantially

proved, he shall direct the Management to impose on such employee

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✌☛✍

any of the penalties as specified in sub section (4). Proviso to sub

section (4) also provide that no such order shall be passed by Director

unless employee and the Management are given reasonable

opportunity of showing cause against the proposed order. Sub Section

(5) provides that the order passed by Director shall be binding on

both, Management as well as employee and that order has to be

complied with by the Management.

8. Admittedly nine charges viz. charge nos. 2, 6 (6.2), 7

(7.1 & 7.2), 10, 11, 12, 13, 18, 21 (21.2, 21.3, 21.4, 21.5, 21.6, 21.7

and 21.8) are proved as per the majority decision and according to the

opinion of representative of the Management, these charges are so

serious that major penalty of reduction in rank should be awarded. In

my considered opinion, when the enquiry committee could not come

to any conclusion and could not decide as to what penalty should be

imposed, it is a fit case where Director should invoke his powers under

Section 4A of the Act and after hearing the Management as well as the

employee, he shall take a decision and the penalty may be awarded.

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✎✑✏

Learned counsel for the parties inform that powers of the Director are

delegated to the Deputy Director of Education. Learned counsel for

both the parties agree that this will be the only appropriate direction

in the given circumstances. It appears that the School Tribunal did not

consider this aspect and dismissed the appeal. In my considered

opinion, the School Tribunal was not right in dismissing the appeal

straightway without considering this legal position and, therefore, it is

necessary to set aside the order passed by the Management as well as

the impugned judgment passed by the School Tribunal.

9. For the aforesaid reasons, writ petition is allowed. The

impugned order passed by the Management reducing the petitioner in

rank i.e. from the post of Head Mistress to Assistant Teacher, is hereby

set aside. The impugned judgment passed by the School Tribunal in

appeal No. STN 26/1999 dated 31.10.2000 is also hereby set aside.

The matter be referred to the Director of Education to take a decision

about penalty to be awarded to the petitioner as per provisions of

Section 4A of the Act, in the light of above observations.

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✒✔✓

The Director/Dy. Director of Education, shall take a

decision about penalty on the basis that nine charges, enumerated

above, have been proved by majority of two against one by the enquiry

committee. No other point shall be allowed to be raised by any of the

parties before the Director/Dy. Director.

The Director/Deputy Director shall take decision within

two months from the date when the parties appear before him. The

parties shall appear before the Deputy Director at Nagpur on

20.04.2009.

The petitioner is presently working as Assistant Teacher

in view of the penalty imposed by the Management. She shall

continue to discharge her functions as such till the decision of Deputy

Director and the decision of the Deputy Director shall be binding on

both the parties.

Rule made absolute accordingly. No order as to costs.

JUDGE

kahale

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