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.
------------
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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. 3064Patil-SR (ch) 15 of 58
wp 12378-19.docNaresh 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
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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
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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
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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
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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
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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
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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
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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 :
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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
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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 ofPatil-SR (ch) 27 of 58
wp 12378-19.docnatural 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
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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
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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
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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
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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,
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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
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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
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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
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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 managingPatil-SR (ch) 38 of 58
wp 12378-19.doctrustee 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
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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
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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.docproceedings, 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.docimposed 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
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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
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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
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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,
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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.docManagement 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.docstepping 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.doccompletely 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.doccomplaints 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.docmanner 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.docdocuments 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.docthe 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
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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
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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