Kashiram s/o Rajaram Kathane vs Bhartiya R. B. Damle Gram Sudhar Tatha Shikshan Prasar Society through its secretary and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 200

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
L. Manoharan G.D. Patil, JJ.
Kashiram s/o Rajaram Kathane..... Petitioner.
Versus
Bhartiya R.B. Damle Gram Sudhar Tatha Shikshan Prasar
Society through its secretary others...... Respondents.
Writ Petition No. 1647 of 1987, decided on 25-4 5-5-1997.
Advocates appeared :
S.G. Aney. S. A., for the petitioner.
A.S. Mardikar, for respondents 1 2.

Headnote:
NATURAL JUSTICE - DISQUALIFICATION - BIAS - INQUIRY COMMITTEE - REINSTATEMENT - BACK WAGES - SECTION 4-A OF THE ACT - DOCTRINE OF NECESSITY - EXONERATION - EMPLOYMENT EXCHANGE ACT, 1959 - SECTION 5(2) - EMPLOYMENT EXCHANGE (COMPULSORY NOTIFICATION OF VACANCIES) RULES, 1960 - RULE 6 - MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATION ACT, 1977 - SECTION 4(6) - MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) RULES, 1981 - RULES 36, 37.
Fact of the Case:

The petitioner, an assistant teacher in a private school, was appointed as Head Master in 1973. In 1986, he was suspended and later dismissed from service following an inquiry into allegations of misconduct. The petitioner challenged the dismissal order and the decision of the School Tribunal upholding the dismissal. The main contention of the petitioner was that the inquiry was vitiated due to the participation of the school's President in the decision-making process after she had given evidence in support of the charges against him.
Finding of the Court:

The court held that the President of the school was disqualified from participating in the decision-making process after she had given evidence in support of the charges against the petitioner. This violated the principles of natural justice and rendered the inquiry and the dismissal order void. The court also held that the doctrine of necessity did not apply in this case as there was a provision in the rules for the inquiry to proceed even in the absence of the President. The court further held that the petitioner was entitled to reinstatement and back wages, but the question of back wages would depend on the outcome of the fresh inquiry.
Issues: 1. Whether the President of the school was disqualified from participating in the decision-making process after she had given evidence in support of the charges against the petitioner? 2. Whether the inquiry and the dismissal order were vitiated due to the violation of principles of natural justice? 3. Whether the doctrine of necessity applied in this case? 4. Whether the petitioner was entitled to reinstatement and back wages?
Ratio Decidendi: 1. The court held that the President of the school was disqualified from participating in the decision-making process after she had given evidence in support of the charges against the petitioner. This violated the principles of natural justice and rendered the inquiry and the dismissal order void. 2. The court held that the inquiry and the dismissal order were vitiated due to the violation of principles of natural justice. 3. The court held that the doctrine of necessity did not apply in this case as there was a provision in the rules for the inquiry to proceed even in the absence of the President. 4. The court held that the petitioner was entitled to reinstatement and back wages, but the question of back wages would depend on the outcome of the fresh inquiry.
Final Decision: The court allowed the writ petition, quashed the dismissal order and the decision of the School Tribunal, and directed the school to reinstate the petitioner. The court also directed the school to conduct a fresh inquiry into the allegations against the petitioner and to decide the question of back wages based on the outcome of the fresh inquiry.

Per L. MANOHARAN, J. :---The petitioner was appointed as an assistant teacher on 26-6-1969 in the school belonging to the 1st respondent. He was later confirmed on 26-9-1971 and was promoted as Head Master with effect from 1-7-1973. While he was so working as Head Master, on certain allegations of misconduct his explanation was called for by the 2nd respondent and he submitted his explanation. As his explanation was found to be not satisfactory, the management decided to conduct an enquiry against the petitioner. Accordingly, a committee was constituted, as is required under Rule 36(2)(b) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter called as the Rules), to enquire into the allegations against the petitioner. The charges were duly framed and served on the petitioner. The petitioner filed his reply to the charges. The Committee found him guilty and decided to terminate his services and the management implemented the said decision by issuing Annexure-12 with effect from 1-9-1986. Aggrieved by the same, the petitioner preferred Appeal No. 118/86 before the School Tribunal. The School Tribunal dismissed the appeal. In this writ petition, the petitioner challenges Annexure-XII dated 31-8-1986 as well as the judgment of the School Tribunal dated 29-4-1987- Annexure-XVI.

2.The learned Counsel Shri Aney contended that the very enquiry as well as the decision are vitiated on account of disqualification incurred by the 2nd respondent by her entering the witness box and swearing in support of the charge. The precise point urged by the learned Counsel is, the whole proceeding is vitiated because the same was in violation of natural justice. It is maintained by the learned Counsel that in view of the fact that respondent No. 2 incurred disqualification, she could not have participated in the decision making process on account of her interest as well as bias which is spontaneous in her giving evidence in support of the charge. Though the petitioner also has a case that the findings entered by the Committee are not sustainable because the same are not supported by the evidence on record, the point urged by the learned Counsel is that the decision is vitiated because of violation of principles of natural justice as a result of respondent No. 2 participating in the decision making process.

3.On the other hand, learned Counsel for respondents 1 2, Shri Mardikar, maintained that there is absolutely no violation of natural justice because the petitioner got enough opportunity to lead evidence and also to cross-examine the 2nd respondent. Alternatively, it was submitted by Shri Mardikar that, at any rate, natural justice stands excluded because of the doctrine of necessity. The point urged by the learned Counsel is, with due regard to Rules 36 and 37 of the Rules, the presence of 2nd respondent in the Committee cannot be dispensed with. That being the position, inspite of the alleged disqualification incurred by the 2nd respondent on her giving evidence in support of the charge the 2nd respondent is bound and entitled to participate in the proceeding till it reached the ultimate conclusion. In such circumstance, according to the learned Counsel, the finding of the Committee cannot be faulted on the ground that there is violation of principal of natural justice.

4. In the context of the aforesaid rival contentions, it becomes necessary to read the relevant provisions concerning disciplinary proceedings. Section 4(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short the Act) enjoins, no employee of a private school shall be suspended, dismissed or removed, or his services be otherwise terminated or be reduced in rank by the management, except in accordance with the provisions of the Act and the Rules. Rule 36 of the rules deals with enquiry committee and Rule 37 deals with the proceedings of enquiry. Rule 36 reads as follows :

"36. Inquiry Comm

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1997 Supreme(Bom) 200

Cases Referred (1)