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JUDGMENT :

V. Ramasubramanian, J.

The removal from service of respondent No.1 herein from the post of Principal of the Institute of Pharmacy, having been set aside by the School Tribunal, Aurangabad and the same having been confirmed by the learned Single Judge and the Division Bench of the High Court, the Educational Society running the Institute of Pharmacy has come up with the above appeal.

2. We have heard the learned counsel appearing for the first respondent and the learned counsel for the State of Maharashtra.

3. The appellant is an Educational Society registered under the Bombay Public Trusts Act. It is running an institute of Pharmacy at Gadhi Georai Dist., Beed. In the year 1991, the first respondent herein was appointed as the Principal of the said Institute. In the year 2004 disciplinary proceedings were initiated against him on certain allegations of serious nature. The Departmental Inquiry Committee held an inquiry in which the first respondent was given all opportunities of fair hearing, including permission to be represented by a lawyer. After the completion of the inquiry, the Inquiry Committee submitted a report on 31.07.2004 holding 7 out of 10 charges proved. Therefore, after issuing a show cause notice enclosing a copy of the Inquiry Report, the Management passed an order dated 19.08.2004 imposing upon the first respondent, the penalty of removal from service.

4. The first respondent challenged the penalty before the School Tribunal by way of an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the 'Act'). The School Tribunal framed five issues as arising for consideration namely: (i) Whether the Inquiry Committee constituted by the Management to conduct further inquiry against the employee was proper, legal and permissible by law? (ii) Whether the Management did not pay subsistence allowance and whether non-payment of subsistence allowance vitiated the inquiry?; (iii) Whether the inquiry was vitiated on account of the fact that the Management conducted the inquiry by engaging a lawyer?; (iv) Whether the Management conducted the inquiry by following Rule 37 of MEPS Rules, 1981?; and (v) Whether the impugned dismissal order was legal and sustainable in law. Out of these five issues, the Tribunal found only the issue relating to the constitution and composition of the Inquiry Committee to be not in accordance with the Rules. Therefore, the said appeal was allowed by the Tribunal by an order dated 22.06.2006, primarily on the ground that the constitution of the Inquiry Committee was not in accordance with Rule 36(2) (b) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the "MEPS Rules").

5. The appellant-Management filed a writ petition in WP No. 5387 of 2006 on the file of the High Court of Judicature at Bombay, Aurangabad Bench. A learned Judge of the High Court dismissed the writ petition, affirming the view taken by the School Tribunal.

6. The intra-court appeal filed by the appellant-Management was dismissed by the division Bench, by placing reliance upon the decision of the Full Bench of the High Court in National Education Society, Nagpur and another vs. Mahendra, S/o. Baburao Jamkar and another, 2007 (3) Mh.L.J. 707. Aggrieved by the said order the Management is on appeal before us.

7. Since the entire dispute revolves around the constitution of the Departmental Inquiry Committee with reference to Rule 36 of the MEPS Rules, it is necessary first to look into Rule 36.

"36. Inquiry Committee.- (1) If an employee is allegedly found to be guilty on (any of the grounds specified in sub-rule (5) of Rule 28) and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by th