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2006 Supreme(Bom) 1351
IN THE HIGH COURT OF BOMBAY
B. H. Marlapalle, JJ.
DATTA SHIKSHAN PRASARAK MANDAL and another
vs.
DINKAR KRISHNA GAWDE Respondent
For petitioners: M. S. Topkar
For respondent: V. S. Masurkar with G. S. Kulkarni and Ms. Sonali Joshi
Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 28(5) - The respondent teacher opened a competing school in the academic year 1983-1984 in the proximity of petitioner No. 2 school while he was being paid salary by the petitioners as a teacher on their roll - Act of the respondent was in breach of terms and conditions of service laid down under the Rules. - The behaviour of the teacher in starting and running a competing private school from his house and in the very proximity of petitioner No. 2-school may not amount to an act of moral turpitude but certainly it violated the code of conduct. It amounted to the breach of the terms and conditions of service laid down under the Rules. Running a private educational institution, whether aided or unaided, is now recognised to be a vocation and it is obvious that the respondent-teacher fully engaged himself in this vocation while he was being paid the salary by the petitioners as a teacher on their roll. Thus while in employment under the petitioners, he engaged himself in another vocation. The charges proved against him were therefore, of serious nature and he lost the confidence of the management. In fact he could have himself examined his morality viz. while working with the petitioners and drawing salary as a full time teacher, he was in front of the whole village running a competing school from his own house and just at a distance of 500 ft. away from the school where he was drawing his salary. The acts on his part certainly indicated that he was unfit to be retained in service and the management did the right thing by dismissing him before it was too late. The majority view of the enquiry committee suffers from no errors and the report is based on an objective analysis of the admitted facts and circumstances. In the premises the findings of the Tribunal are perverse and the reasoning is manifestly erroneous warranting interference under Article 227 of the Constitution.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 36(2) - Compliance of Rule 36(2) is an internal procedure of the management. - It is not mandatory that the management is required to prove that such a compliance was done before the enquiry proceedings started and, therefore, the view taken by the Tribunal that there was breach of Rule 36(2) is unsustainable, more so when in the appeal memo submitted before the School Tribunal no such plea was raised.
Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 37 - Enquiry proceedings - Failure of the management to lead oral evidence per se cannot be the violation of Rule 37(2)(a)(i) or Rule 37(2)(a)(ii).
Departmental enquiry - Departmental enquiries instituted by way of disciplinary measures against the delinquent employees must meet the basic concept of fair-play, audi alteram partem and the domestic tribunal must be constituted in keeping with the rules.
2. The brief facts are that the respondent who was holding the lcations of B.Sc., REd. came to be appointed as an Assistant Teacher in the Janta High School at ShilUl run by Shri Datta Shikshan Prasarak Mandai, a Public Charitable Trust (old Society for short ) and also a society registered under the Societies Registration Act. 1860. The petitioners No.2-Headmaster is the five Trustees of the said Society. The respondent was confirmed as A Teacher in June, 1975. He came to be promoted and appointed as Supreme the said School in the year 1983-84 and was issued a show cause notice date 1-1987 in respect of 11 allegations. He replied to the said show cause n 13-2-1987 and denied the allegations and he concluded the said reply by that the show cause notice was issued to him under a miss belief that the New English High School started by Shri Shahu Shikshan Prasarak Mandal a was started as a rival competing school. He also offered to resign from the Secretary of Shri Shahu Shikshan Prasarak Mandal (new Society for another Society/Trust. The respondent had become the Secretary of that 30-9-1979. The management addressed a letter dated 27-2-1987 respondent by noting that he had offered to resign from the post of the S of the new Society and informed him that there were other allegations him as well and they were serious in nature and, therefore, it was decided an enquiry into the said allegations. He was informed that a charge-sheet. be served on him. Under Rule 36(1) he was also called upon to nominal representative on the enquiry committee and accordingly by his letter date 1987 he nominated Shri KS. Sankpal, who was working as an Assistant at Smt. L. P. Girls High School, Jaisingpur and the said Mr. Sankpal consent by addressing a letter to the management on 21-3-198 management nominated its representatives Mr. H. Y. Gawade as the C . and Mr. B. S. Mudbidrikar (a State Awardee Teacher). Thus the committee was made of Mr. H. Y. Gawade (Convener), Mr. B. S. Mud (State Awardee Teacher) and Mr. K S. Sankpal (Representative respondent). The charge-sheet was issued to him on 26-3-1987 and the same replied by the respondent on 4-4-1987 and he denied the charges. Therefor the enquiry proceeded and the first sitting appears to have commenced on 24 In the subsequent sittings apart from these three members, the head of the or the Secretary of the old Society and the respondent teacher appeared exchanged documents. The enquiry was concluded on 17-6-1987. When to the submission of findings, the enquiry committee was divided in its As per the representative of the respondent the charges were not proved was no material in support of any of the charges and in any case the respondent becoming the Secretary of the new Society was not an act of misconduct. Whereas the other two members of the enquiry committee in their respondent 28-6-1987 held that the charges were proved against the respondent teacher the charges were of serious nature. Consequently they recommended. termination of service by way of punishment. By consolidating the respondent 28-6-1987 of the majority members and the report of Mr. Sankpal date 1987 a common report of the enquiry findings was made on 8-7-1987 an of the same was also made over to the respondent. By the order dated 3the respondent came to be dismissed from service with effect from 5-10-1
3.The respondent in his appeal before the School Tribunal challenged termination on the grounds that it was illegal, impr
