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
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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 theenquiring authority as well as the final decision
making authority in the sense that the management’s
role was only to implement the decision of theenquiry Committee. Therefore, the role of the
Committee cannot be treated as only
recommendatory Thus, the Committee really is thedecision 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 theprinciples 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 caseof 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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