1998 Supreme(Bom) 5

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Mahalaxmi Shikshan Sanstha ..... Petitioner.
Versus
State of Maharashtra others .... Respondents.
Writ Petition No. 1024 of 1985, decided on 8/9-1-1998.
Advocates appeared :
Navin Parekh, i/b Mehta Girdharlal, for the petitioner.
Rajiv Mane, for the respondent No. 1.
V.V. Pai, A.G.P., for respondent No. 2.

Headnote:Section 9-Maharashlra Employees Private Schools (Conditions of Service) Rules, 1981, Rules 36 and 37-Service- Termination of-Principles of natural justice-Enquiry report -Employee guilty of misconduct-Demand of copies of all documents-Not supplied to employee-Held-Since the enquiry proceedings suffer from violation of principles of natural justice-Tribunal in setting aside the order removing employee committed no error.-In the present case the Enquiry Committee held the charges proved against the employee and found the employee guilty of misconduct and mis-behaviour of serious nature. The Enquiry Committee sent the copy of its report to the employee by the communication, dated 30th July, 1984. The management by notification, dated 31st July, 1984 removed the employee from service. The said notification came to be challenged by the employee before the Tribunal under Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977. The School Tribunal after hearing the parties held that the enquiry proceedings suffered from serious violation of principles of natural justice and that employee was not accorded sufficient opportunity in the enquiry, and, therefore, the enquiry held against the employee was not proper and legal and the finding given by the Enquiry Committee were not valid. A conjoint reading of the Rules 36 and 37 along with other provisions of Rules of 1981 would indicate that in elaborate and self contained procedure has been provided to enquire, into the allegations of misconduct, moral turpitude, wilful and persistent negligence of duty and incompetence of the employee covered under the Act and Rules. The procedure contained in Rules 36 and 37 dealing with the constitution of Enquiry Committee and procedure of enquiry is intended to endure that every reasonable opportunity IS extended to the employee for the defence of his case in the enquiry instituted against him. The procedure prescribed in Rules 36 and 37 is based on primary principles of natural justice and fair play to ensure that the employee of the private schools covered under the Acts and Rules is not condemned unheard. It appears that though for want of quorum, the proceedings of the Enquiry Committee were adjourned to 19.6.1984, the management produced certain documents in support of the charges against the employee on 15.6.1984. However, admittedly true copies of the documents so tendered by the management by way of evidence were not supplied by the management to the delinquent employee in terms of clause (iii) of sub-rule (2)(a) of Rule 37, on 19.6.1984 the employee was not present and the oral evidence of the witnesses produced by the management was recorded. However, from the record and proceedings of the Enquiry Committee made available to Court by the learned counsel for the petitioner for Courts perusal the statement of the witnesses produced by the management are not found. It also appears that by the letter, dated 10th July, 1984 which was hand delivered to. the convener of the Enquiry Committee the delinquent employee prayed for supply of all relevant documents placed on record by the management and for cross-examination of the management witnesses. Despite the said request, admittedly neither the said documents which were produced by the management in support of its case were supplied to the delinquent employee nor copies of the statement of witnesses produced on behalf of the management were supplied nor the delinquent was accorded opportunity to cross examine the management witnesses. The Tribunal has gone into the merits of the charges as well and found that the serious charge against the delinquent employee was misappropriation of funds and avoidance to complete audit report for years. In that regard in paras 6 and 7, the Tribunal observed that due to want of audited reports it was difficult to state to what extent the delinquent employee was to be held responsible. The Tribunal also found that the Chartered Accountant submitted his audit report on 15.12.1984 and the said report carne into the hands of the management sometimes in the month of January 85 and, therefore, the charges based on the books of accounts cannot stand. Court has no reason to take a different view in that regard. The other charges have also not been held to be proved on merits by the Tribunal. In Courts view, since the enquiry proceedings suffer seriously from violation of principles of natural justice and procedure contemplated under Rule 370f Rules of 1981, the Tribunal did not and cannot be said to have committed any error in setting aside the notification, dt. 31st July, 1984 removing the delinquent employee from service which was based on the enquiry report.