Vidya
Vikas Mandal & Anr Vs. The Education Officer & Anr [2007] Insc 109 (7 February
2007)
Dr. AR. LAKSHMANAN & ALTAMAS KABIR
(@ S.L.P.(C) No.7613/2004) Dr. AR. Lakshmanan, J.
Heard Mr. Manish Pitale, learned counsel for the appellants, Mr.
S.S. Shinde, learned counsel for the Respondent no.1 and Mr.
Nikhil Nayyar, learned counsel for the Respondent no.2.
Leave granted.
This appeal is directed against the final judgment and order dated 14.7.2003
in L.P.A. No.66 of 2003 passed by the High Court of Bombay, Nagpur Bench, Nagpur.
A charge-sheet was served on the delinquent employee. Seven charges were
leveled against him. Apart from the charge of harassment and misbehaviour with
girl students, other charges of inefficiency, in-subordination and corruption were
also specified against respondent no.2, namely, Subhash Lingawar. A Inquiry
Committee consisting of three members was constituted, which consisted of Mr.
P.S. Donadkar (Nominated by the Management), Mr. P.V. Madamshettiwar (Deliquent's
representative) and Mrs. V.S. Ramteke (State Awardee teacher). Respondent no.2
submitted his reply to the aforesaid charge sheet. The inquiry was initiated
and the first meeting was held on 10.10.1998. During the pendency of the
inquiry, respondent no.2 was not suspended and he continued to attend to his
duties. In the inquiry proceedings, it was found that the respondent no.2 was
being non-cooperative, two members of the Inquiry Committee, i.e. Nominee of
respondent no.2 and the State Awardee teacher were trying to stall the
proceedings. Upon conclusion of the inquiry, as required under Rule 37 (4) of
the Rules, the Inquiry Committee sent to respondent no.2 the summary
proceedings and copies of statements of witnesses for him to submit his
explanation within 7 days under Rule 37 (5).
Thus, respondent no.2 had time of 7 days till 28.2.2000 to submit his
explanation. The respondent no.2 failed to submit his explanation to the
Inquiry Committee. Thus, under Rule 37 (6), the Inquiry Committee was required
to communicate its findings to the Management within 10 days. The requirement
was mandatory and the period of 10 days expired on 9.3.2000. Mr.
P.S. Donadkar, the management nominee and the Convenor of the Inquiry
Committee sent his report and findings to the Management. In this report, the
aforesaid Member and Convenor of the Inquiry Committee found all charges proved
against respondent no.2 and having been found guilty, punishment of termination
from service was recommended against respondent no.2. It was also recorded in
the aforesaid report and findings that the other two members of the Inquiry
Committee had not submitted their findings and that during the course of
inquiry they had sought to favour respondent no.2 and that their attitude was
not appropriate. As the appellant Management received the findings of only the Convenor
of the Inquiry Committee within the period of 10 days mandated by Rule 37 (6)
of the Rules, it decided to terminate the services of respondent no.2 on the
basis of the recommendation and the findings received. The appellant Management
issued order terminating the service of respondent no.2 w.e.f. 1.4.2000,
thereby terminating the service of respondent no.2.
The findings of the other two members of the Inquiry Committee dated
21.3.2000 and 29.3.2000 were received by the appellant Management. According to
the appellant, these findings were no findings in the eyes of law because the
period of ten days mandated by Rule 37 (6) of the Rules whereby findings were
to be submitted to the appellant Management, had expired on 9.3.2000 itself.
Therefore, Mr. Manish Pitale, learned counsel appearing for the
appellant-Management submitted that the aforesaid findings of the two members
were meaningless. The findings of the State Awardee teacher leveled wild
allegations against the Convenor and Management nominee Member of the Inquiry
Committee. The third member, the nominee of respondent no.2, simply adopted the
findings of the aforesaid State Awardee teacher. In their findings both these
members exonerated the respondent no.2.
The respondent no.2 filed an appeal bearing Appeal no.41 of 2000 before the
Presiding Officer School Tribunal, Nagpur, challenging the aforesaid order of
termination of service passed by the appellant Management. The said Tribunal
allowed the appeal of Respondent no.2 mainly on the ground that two of the
three members of the Inquiry Committee had exonerated the respondent no.2. The
Tribunal directed to reinstate respondent no.2 and to pay full back wages to
him. Aggrieved by the aforesaid order, the Management challenged the same
before the Nagpur Bench of the Bombay High Court by filing a writ petition.
The Learned Single Judge of the High Court dismissed the writ petition only
on the ground that two of the three members had exonerated the respondent no.2.
Aggrieved by the said order, the Management filed Letters Patent Appeal
no.66/2003 before the Division Bench of the High Court. In this appeal, the
Management specifically raised the question of interpretation of Rule 37(6) of
the aforesaid Rules to show that findings of the two members given after the
expiry of the mandatory period of ten days were no findings in the eyes of law
and that the Management was not bound to accept the same.
The Division Bench, however, dismissed the appeal again only on the ground
that two of the three members of the Inquiry Committee had exonerated the
respondent no.2. The present appeal was filed against the said order. The
Management also filed review before the Division Bench of the High Court, which
passed the orders in the Letters Patent Appeal. This review application was
also withdrawn with liberty to approach this Court by way of special leave
petition to challenge the order dated 14.7.2003 passed in L.P.A. no.66/2003.
We heard the learned counsel appearing for the respective parties. Mr.
Manish Pitale, learned counsel for the appellants, submitted that the courts
below were not justified in holding against the appellants ignoring the
provision of Rule 37 (6) of the Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981. According to the learned counsel, the said Rule is
mandatory in nature. It is further submitted that the findings given by two
members of the Inquiry Committee exonerating the respondent no.2 were submitted
after the mandatory period of ten days specified in Rule 37 (6) of the
aforesaid Rules had expired. Therefore, he submitted that the findings given by
the two members of the Inquiry Committee after expiry of the mandatory period
cannot be binding on the appellant-Management while deciding the question of
taking action against respondent no.2. In support of the above submission, our
attention was drawn to sub-Rule (4) (5) & (6) of Rule 37 of the aforesaid
Rules, which read thus:
-
-
The Convenor of the Inquiry Committee shall forward to the
employee or the Head, as the case may be a summary of the proceedings and
copies of statements of witnesses, if any, by registered post acknowledgment
due within four days of completion of the above steps and allow him a time of seven
days to offer his further explanation, if any.
-
The employee or the Head, as the case
may be shall submit his further explanation to the Convener of the Inquiry
Committee within a period of seven days from the date of receipt of the summary
of proceedings etc. either personally or by registered post acknowledgment due.
-
On receipt of such further
explanation or if no explanation is offered within the aforesaid time the
Inquiry Committee shall complete the inquiry and communicate its findings on the
charges against the employee and its decision on the basis of these findings to
the Management for specific action to be taken against the employee or the Head,
as the case may be, within ten days after the date fixed for receipt of further
explanation. It shall also forward a copy of the same by registered post
acknowledgment due to the employee or the Head, as the case may be. A copy of
the findings and decision shall also be endorsed to the Education Officer or the
Deputy Director, as the case may be, by registered post acknowledgment due.
Thereafter, the decision of the Inquiry Committee shall be implemented by
the Management which shall issue necessary orders within seven days from the
date of receipt of decision of the Inquiry Committee, by registered post
acknowledgment due. The Management shall also endorse a copy of its order to
the Education Officer or the Deputy Director as the case may be."
Our attention was also drawn to Rule 36 sub-clause 2(a), which applies to
the case of an employee and reads thus:
36.2.a
"In the case of
an employee-
-
one member from amongst the members
of the Management to be nominated by the Management, or by the President of the
Management if so authorized by the Management, whose name shall be communicated
to the Chief Executive Officer within 15 days from the date of the decision of
the Management.
-
one member to be nominated by the
employee from amongst the employees of any private school;
-
one member chosen by the Chief
Executive Officer from the panel of teachers on whom State/National Award has
been conferred."
As rightly pointed out by the learned counsel for the appellants, Rule 37
(6), which is mandatory in nature, has not been strictly complied with. The
Inquiry Committee comprising of three members, as already noticed, only one
member nominated by the Management has submitted his Inquiry report within the
time stipulated as per Rule 37 (6) and admittedly, the other two members
nominated by the employee and an independent member have not submitted their
report within the time prescribed under Rule 37 (6). However, the learned
Judges of the Division Bench, though noticed that the two members out of three
found the employee not guilty, failed to appreciate that the said findings by
the two members of the committee were submitted after the expiry of the period
prescribed under Rule 37(6). In our opinion, the report submitted by individual
members is also not in accordance with the Rules. When the Committee of three
members are appointed to inquire into a particular matter, all the three should
submit their combined report whether consenting or otherwise. Since the report
is not in accordance with the mandatory provisions, the Tribunal and the
learned Single Judge and also the Division Bench of the High Court have
committed a serious error in accepting the said report and acted on it and
thereby ordering the reinstatement with back wages. Since the reinstatement and
back wages now ordered are quite contrary to the mandatory provisions of Rule
37 (6), we have no hesitation in setting aside the order passed by the
Tribunal, and learned Single Judge and also of the Division Bench of the High
Court. In addition, we also set aside the order passed by the Management based
on the report submitted by the single member of the Committee, which is also
quite contrary to the Rules.
In view of the order now passed by this Court, the Rule 36(2) (a) is now to
be invoked and as per the said Rule, one member from amongst the members of the
Management is to be nominated by the Management or by the President of the
Management if so authorised by the Management, and one member is to be
nominated from amongst the employees of any private school and the third member
to be chosen by the Chief Executive Officer from the panel of teachers on whom
State/National Award has been conferred. We direct the Management of the School
to constitute the Committee in accordance with sub-Rules (i) (ii) & (iii)
of Rule 36(2)(a) to go into the matter afresh. The respondent no.2, the
employee, will be now treated under suspension and he will be entitled to the
subsistence allowance as per rules with effect from the date of termination of
his services. The inquiry shall be completed by the Committee within a period
of six months from the date of their nomination/constitution.
The Civil Appeal is disposed of on the above terms. No costs.
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