Latika Gorakh Mate Vs. the Secretary, Rural Education Society, - Court Judgment

Excerpt:
- - (1) on receipt of an appeal, where the tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the management it may dismiss the appeal. it is observed by the apex court that since the report of the committee was not in ccordance with the mandatory provisions of law, it cannot be accepted and acted upon and hence, action taken by the management on this report which was set aside by the tribunal as well as by the single judge and division bench of this court, was set aside by the apex court. all these facts clearly go to show that the facts of the judgment cited and the facts of the case in hand are totally different. thus, in view of deletion of sub-rules (2) and (3) of rule 28 from the rules any action inflicting major penalty on a permanent employee without holding enquiry or without following principles of natural justice is bad, illegal and violative of the provisions of the act and rules. 41. needless to mention that a statute is best understood if we know the reason for it. in this legal battle, poor employees would always be at the receiving end. the very purpose of the act and rules framed thereunder would stand defeated. (as he then was), para55 thereof makes a reference to a well known judgment in the case of taylor v. therefore, i have to hold that the order to conduct fresh enquiry pending appeal, passed by the school tribunal is bad in law and hence ought to be quashed and set aside.a.v. potdar, j.1. by present petition, filed under articles 226 and 227 of the constitution of india, the petitioner has challenged the order passed by the school tribunal, latur dated 18.06.2008 in appeal no. 29/2007 thereby allowing respondent no. 1 to conduct enquiry against the petitioner during the pendency of the appeal.2. rule. rule made returnable forthwith. with the consent of the parties heard finally at the stage of admission.3. heard learned counsel for the parties.4. the facts, which gave rise to file the present writ petition and certain undisputed facts, can be summarized as follows:a) the petitioner was appointed as an assistant teacher in the school run by respondent no. 1, on 01.08.1985. she is a permanent employee. the petitioner was promoted as a head mistress on 11.06.1996. a dispute in respect of difference of salary was pending before the education officer (respondent no. 2) and the petitioner, as the petitioner had taken a different stand than that of the education officer, respondent no. 2 and had raised legal objections. vide letter dated 26.06.2007, the respondent no. 2 had directed the management, respondent no. 1 to conduct an enquiry against the petitioner. on 27.02.2007, a show cause notice was issued to the petitioner to which she replied and denied the allegations leveled in the said notice. according to the petitioner, without conducting any inquiry, as contemplated under rules 36 and 37 of the maharashtra employees of private schools (condition of service) rules 1981 she was reverted to the post of assistant teacher from the post of head mistress. the petitioner challenged the said action of the management by preferring appeal no. 29/2007 before the school tribunal at latur. in the said appeal, stay petition was granted on 25.06.2007. respondent no. 1 had challenged the said order before this court by filing writ petition no. 4547/2007. the said writ petition came to be disposed of by judgment dated 06.12.2007 with a direction to the presiding officer, school tribunal to dispose of the appeal within a period of 6 months and set aside the stay order.b) according to the petitioner, when the appeal came up for hearing on 18.02.2008 before the tribunal, respondent no. 1 moved an application for grant of permission to conduct enquiry as per rule 36 of the meps (cs) rules of 1981. this application for permission to conduct an enquiry was opposed by the petitioner. however, vide order dated 18.06.2008, the said application came to be allowed by the tribunal with a direction to conduct enquiry and complete the same within a period of one month. the petitioner has challenged the said order in this petition.5. in response to the notice issued to the respondents, the management appeared in the writ petition and filed its affidavit in reply on 28.07.2008 for opposing admission of this petition. in the said affidavit in reply, amongst other grounds, it is contended in para 5 that the education officer (respondent no. 2), directed to conduct an enquiry vide letter dated 26.02.2007, and, therefore, one shri krishnrao nade was appointed as enquiry officer and on the basis of the report submitted by him, the management has taken action of reversion of the petitioner, which is the subject matter of challenge in appeal before the school tribunal. in para 8 of the affidavit in reply, it is contended that during the course of hearing of the appeal it transpired that there was objection in respect of appointment of one man committee, as it was not as per rule 36 of the rules of 1981, hence an application was moved for permission to conduct enquiry by appointing committee as required under rule 36 (2) (b) and thus justified and supported the impugned order passed by the school tribunal.6. heard submissions of learned counsel in this background. learned counsel appearing for petitioner heavily relied upon section 11(2) of the meps act, which speaks about the powers and jurisdiction vested in tribunal and it is contended that the tribunal cannot direct fresh enquiry unless the tribunal come to a conclusion that the earlier enquiry is defective and sets aside the impugned order based on the said enquiry. according to the advocate for petitioner, ratio laid down in ruling reported in 2007 (3) mh.l.j. 801 on which reliance is placed by the presiding officer, is not at all applicable to the facts of the present case. in support of his submissions, he has placed reliance on the judgment of full bench of this court reported in 2007 mh ec 176. as against this, counsel for respondent no. 1 relied upon the judgment reported in : 2002(4)mhlj848 , which is based on the earlier judgment reported in 1988 mh.l.j. 530, wherein it is observed that the school tribunal has jurisdiction to hold further enquiry, if it comes to a conclusion that enquiry is vitiated on the ground of non observance of principles of natural justice.7. for proper appreciation of the submissions, it is necessary to reproduce section 11 of the meps act, which deals with the powers of the tribunal which reads as follows:11 powers of tribunal to give appropriate reliefs and directions: (1) on receipt of an appeal, where the tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the management it may dismiss the appeal.(2) where the tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the tribunal may set aside the order of the management, partially or wholly, and direct the management-, (a) to reinstate the employee on the same post or on a lower post as it may specify;(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;(c) to give arrears of emoluments to the employee for such period as it may specify;(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;(e) where it is decided not to reinstate the employee or in any other appropriate case, to give to the employee twelve months' salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months' salary (pay and allowances, if any) if he has been in service of the school for less than ten years, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or(f) to give such other relief to the employee and to observe such other conditions as it may specify; having regard to the circumstances of the case.8. considering the submissions advanced across the bar and the powers vested in the tribunal, i frame point for consideration - 'can the school tribunal grant permission to the management to conduct fresh enquiry under rule 36 (2) of the rules of 1981 during the pendency of appeal in which previous enquiry, on the basis of which the petitioner was reverted, is alleged as a defective enquiry?' learned counsel appearing for the petitioner has insisted to frame further point that if the finding on this point would be concluded in affirmative then 'whether the school tribunal is empowered to curtail the period of enquiry?'9. in the ruling reported in 2007 (3) mh.l.j. 801 in the matter of 'vidya vikas mandal v. education officer' the apex court was dealing with the issue of mandatory nature of rule 36 (2) of the rules of 1981 where 3 members enquiry committee was constituted to enquire into the charges leveled against the delinquent employee, but the committee has not submitted its combined report in stipulated time, one member has submitted his report within stipulated time while the other two members have submitted their reports after the expiry of the stipulated period. it is observed by the apex court that since the report of the committee was not in ccordance with the mandatory provisions of law, it cannot be accepted and acted upon and hence, action taken by the management on this report which was set aside by the tribunal as well as by the single judge and division bench of this court, was set aside by the apex court. therefore, all these decisions were set aside by the apex court and directed the management to constitute a committee according to law and to conduct an enquiry afresh. all these facts clearly go to show that the facts of the judgment cited and the facts of the case in hand are totally different. hence, the ruling is not applicable to the facts of the present petition.10. judgment reported in : 2002(4)mhlj848 in the matter of 'bal shikshan mandal, sangamner v. poonam rameshwar joshi', finds reference of the judgment reported in 1988 mh.l.j. 530 in the matter of 'prahladrai dalmia lions college of commerce and economics, bombay v. a.m. rangaparia' wherein the single judge of this court had interpreted section 42 of the bombay university act, which deals with the jurisdiction of the college tribunal, under the said act. in the reference before the full bench of this court, this judgment is discussed at length in para 7 and hence i am not separately discussing the same.11. issue for consideration before the full bench in reference finds place in para 13, which reads as follows:13. from the order of reference and rival submissions made, the question that arises for consideration is: whether the school tribunal hearing appeal against the order of termination / dismissal, reduction in rank etc. can permit the school management to lead evidence before the tribunal in respect of the misconduct alleged against an employee; when the management did not hold any enquiry before terminating the services of the employee or the enquiry held against the employee is found to be defective? 12. the point, which i have framed for consideration in this petition and the issue for consideration before the full bench in reference is on the same line.13. considering all the contentions raised before the full bench in the reference, the full bench has concluded in case of 'no enquiry' in para 40 to 47 of its judgment. for clear appreciation, they are required to be reproduced, which read as follows:in case of 'no enquiry':40. one of the submissions is that under the industrial and labour legislations the consistent view of the apex court is that, in case of no enquiry or defective enquiry, the employer has a right to lead evidence before the court or tribunal to justify its punitive action. thus according to the submissions made, the case of no enquiry and defective enquiry should be treated on equal footing. in order to consider this submission, one has to go into the legislative history of the act and rules framed thereunder. sub rules (2) and (3) of rule 28 of the rules, prior to its amendment in the year 1984 vide notification dated 20th december, 1984, did provide for contingency to dispense with the necessity of holding enquiry against the employee involving immodest or immoral behavior with a female or male student or employee or such other action involving moral turpitude. the existence of sub-rules (2) and (3) of rule 28 permitting the school management not to hold enquiry in certain contingencies mentioned therein was considered and recognised by the learned single judge of this court in the case of sindhu education society v. kacharu jairam khobragade 1994 clr 792 : 1996(1) bom. c.r. 404. however, the said sub-rules, subsequently, came to be deleted by the amending rules vide notification dated 20th december, 1984. it is, thus clear that at one point of time, the case of no inquiry leading to infliction of major penalties in certain types of cases had a legislative sanction, but the legislature in its wisdom thought it fit to delete the said sub-rules from the statute. if that be so, the clear legislative intent is not to permit the management to dismiss a permanent employee without holding enquiry in any contingency. in the circumstances, what is not allowed to be done directly can not be allowed to be done indirectly. sub-rules (2) and (3) of rule 28 can not be made alive by judicial sanction. thus, in view of deletion of sub-rules (2) and (3) of rule 28 from the rules any action inflicting major penalty on a permanent employee without holding enquiry or without following principles of natural justice is bad, illegal and violative of the provisions of the act and rules. consequently, school management can not be allowed to justify their action, for the first time, before the tribunal, in absence of any enquiry in accordance with the provisions of the act and rules, which are clear and unambiguous. the acceptance of submission made in this behalf that, even in case of no enquiry school management should be allowed to justify their action inflicting major penalties for the first time before the tribunal would amount to giving bonus to a person indulging in the illegal act having no sanction of the act and/or rules.41. needless to mention that a statute is best understood if we know the reason for it. the reason for a statute is the safest guide to its interpretation. the words of the statute take their colour from the reason for it. if judicial recognition is given to the right of management to inflict major penalties against their permanent employee without holding enquiry, the possibility of rampant misuse of such recognition by the school managements, who have enormous money power, can not be ruled out. the school managements can afford to take a risk of dismissing their employees without holding enquiry at the cost of the finances of the school to satisfy their own ego; and may not mind spending money to fight out frivolous and untenable litigation in the courts for years together since everybody knows that once the matter goes to the court, it takes years together to get final decision. in this legal battle, poor employees would always be at the receiving end. it would take away the right of the employee to claim security and stability of service for which the act has been enacted. the very purpose of the act and rules framed thereunder would stand defeated.42. if one turns to the full bench judgment in the case of awdhesh narayan k. singh v. adarsh vidya mandir trust 2004(1) all mr 346 authored by justice c.k. thakker, c.j. (as he then was), para55 thereof makes a reference to a well known judgment in the case of taylor v. taylor (1875) 1 ch d 426, by jessel m.r. and quoted as under:when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted. in the same para the full bench has further quoted judgment of frankfurter, j. in viteralli v. saton 359 us 535; wherein again a principle is recognised that if statute provides particular mode of doing a particular thing in a particular manner, then in that event that thing must be done in that manner only.43. the aforesaid principle is recognised by the apex court in the case of state of uttar pradesh v. singhara singh : [1964]4scr485 .44. if one turns to section 4(6) of the m.e.p.s. act, then it would be clear that provisions thereof and rules framed thereunder do not allow the school management to bypass the necessity of holding enquiry, if the management wants to resort to take action against a permanent employee inflicting major penalties. any action in breach of section 4(6) of the act would be invalid and illegal.45. at this stage, it would be relevant to make reference to the cases of government employees, who are protected under article 311 of the constitution of india. if the punitive action leading to dismissal, removal or reduction in rank without holding enquiry is taken in case of government employee, then no alternative is left for the courts but to direct reinstatement will full back wages. however, in the recent judgments, the apex court has adopted little different route and permitted the management to hold departmental enquiry from the stage the illegality has crept in. in this behalf, readily available judgments are in the cases of state of punjab and ors. v. dr. harbhajan singh greasy; u.p. state spinning co. ltd. v. r.s. pandy and anr. : (2005)8scc264 ; u.p. state textile corporation ltd. v. p.c. chaturvedi and ors. : (2006)illj413sc ; wherein the supreme court has observed that in case of no enquiry or defective enquiry, proper relief is to set aside the dismissal with direction to the management to hold enquiry from the stage the illegality has crept in and that the reinstatement is to be treated for the purposes of holding fresh enquiry and no more. so far as back wages are concerned, the entitlement thereof is to make dependent on the final outcome of the fresh enquiry.46. the aforesaid principle has been adopted by the division bench of this court while considering provisions of the m.e.p.s. act in the case of kashiram rajaram kathane v. bhartiya r.b. damle gramsudhar shikshan prasar sanstha 1997(3) mh.l.j. 235, wherein and the division bench has read the aforesaid statement of law and the principles recognised by the supreme court in section 11 of the act. this view is holding the field for a decade.47. the upshot of above is that the m.e.p.s. act and rules do not subscribe to the action of the management leading to inflicting major penalties without holding enquiry as contemplated under the provisions of the act and rules. in this backdrop, in case of 'no enquiry', the school management cannot be allowed to justify their action, for the first time, before the school tribunal. it is open for the school tribunal; to adopt the same route which has been adopted by the supreme court in the case of dr. harbhajan singh greasy with some other cases noted supra but the school management cannot be allowed to justify their action for the first time before the tribunal in case of no enquiry.14. considering the observations of the full bench in para 45, 46 and 47, which are reproduced herein above, and point for consideration before me, i cannot take a different view than the reference answered by the full bench in the above referred judgment. therefore, i have to hold that the order to conduct fresh enquiry pending appeal, passed by the school tribunal is bad in law and hence ought to be quashed and set aside. accordingly, the impugned order is quashed and set aside.15. rule is thus made absolute on the terms indicated above. the writ petition stands disposed of with no order as to costs.16. the parties are directed to appear before the presiding officer, school tribunal, latur for further hearing, within 4 weeks from today.