2009 Supreme(Bom) 1417

`In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI
Yavatmal Islamia Anglo Urdu Education Society, Yavatmal, through it’s Secretary/Manager, R/o. Yavatmal, Distt. Yavatmal & Another
Versus
Mujib Ahmed Abbas Ali & Another
Writ Petition No.4347 of 2002
Decided on : 16-10-2009

Headnote:Maharashtra Educational Institution (Management) Act, 1976 - Sections 4 and 11 - MEPS Rules, 1981, Rule 37(2)(i)(iii) - Termination of services - Misconduct - Reinstatement with backwages directed by School Tribunal while allowing appeal against - Challenged by petitioner - Contentions, Tribunal ought to have exercised its power and directed them to prove misconduct as charges levelled against respondent-1 serious in nature - Held - Tribunal committed no error in setting aside order of termination as reasons furnished correct and tally with records - Impugned order of Tribunal confirmed - Petition dismissed with costs. - It is seen that the delinquent was given charge-sheet after he was suspended on 14.9.1998 and thereafter, for the first time, the first meeting was held on 29.9.1998 and it is on that date the convenor of the meeting or the petitioner management were bound to supply the list of the witnesses to the delinquent before going ahead. But none bothered to do so. On 13.10.1998 the delinquent issued a letter to furnish him the list of witnesses as he did not receive the same, but that was not done. Surprisingly enough, on 27.10.1998 one Mohd. Haq was examined and even on that day the list of witnesses was not furnished to the delinquent and even the petitioner states in its written note of argument that the said list was supplied to him on 28.10.1998 i.e. after the evidence of Mr. Haq was recorded. The only explanation coming forward from the petitioner-management is that there was no requirement to supply the list to the delinquent. In the first place, having regard to the principles of natural justice, such a submission is misconceived and assuming it to be technically correct as per the Rule 37(2)(i), (iii), the convenor was obliged to supply him the list of witnesses before proceeding to record any evidence. Supply of list of witnesses in advance is very important since the delinquent must know the names of witnesses or the nature of evidence that would be recorded against him and to plan his strategy to cross-examine them and bring proper evidence on record. Failure to supply list of witnesses was certainly a serious breach on the part of the petitioner management as well as enquiry committee. Again on 28.10.1998, on which date list of witnesses was supplied, witnesses were examined by the Management. The Enquiry Committee had full knowledge that after repeated demands for supply of list of witnesses to it by the delinquent, the list was supplied on 28.10.1998. Despite this surprisingly enough it examined witnesses on 28.10.1998 and discharged the witnesses without their cross-examination. Record nowhere shows that Committee had offered the delinquent some time to cross-examine the witnesses particularly because list was supplied on the same day. To say that nothing prevented the delinquent to cross-examine the witnesses on 28.10.1998 in the above factual background is absurd. Enquiry Committee acts as a domestic Tribunal for deciding the fate of an employee. It is an independent body constituted by rules, and it cannot be expected to indulge in breaching the principles of natural justice repeatedly. All this was done deliberately. Though it is not possible to record each and every thing from Pages 165 to 217 to which Court’s attention was invited by Mr. Johrapurkar, Court must say that Court has gone through the entire correspondence and Court finds that the state of affairs when the enquiry was going on clearly indicates that the attitude of the management as well as the Enquiry Committee was with clear hostility towards the delinquent-respondent No. 1. The respondent No. 1 was required to send the letters by registered post A/D having found that the Enquiry Committee was also hostile to him. He was not allowed to cross-examine the witness Smt. Saba Nasreen on 14.11.1998. He was not given the necessary order sheet etc. when demanded. It is then pertinent to note that on 14.11.1998 when the enquiry was fixed and was completed, the Committee did not fix the future date and allowed the parties to go without date and it appears that thereafter suddenly it fixed the next date as 17.11.1998 and issued telegram and registered letter to the delinquent. He received the telegram at 1.35 hours on 17.11.1998 and the letter on 18.11.1998 and by that time on 17.11.1998 itself, four witnesses were examined and the management on that date closed its side without cross-examination of all those witnesses. This is something unheard of and the only conclusion that can be drawn is that it was deliberate and with a view to victimize the employee. When on 18.11.1998 he sought permission to cross-examine them, his request was not even considered. As regards the hostility of the petitioner management and the Enquiry Committee, there are further salient features which can be pointed out. On 30.11.1998 when the enquiry was already fixed, Shri Pardakhe, nominee of the delinquent employee was required to attend meeting on 30.11.1998 at Amravati as per permission granted by Headmaster. Permission was granted to attend the meeting on 2.12.98 at 11 o’clock at Nagpur. Thus in this background, since Shri Pardakhe was required to attend the meetings at Amravati and Nagpur, time was sought by the delinquent till 12.12.1998 for examining himself and his witnesses, but his application for adjournment was rejected on 4.12.1998 and immediately on the next date i.e. on 5.12.1998 the summery of proceedings and copies of statement were sent by the Committee. It thus clearly appears that the petitioner and the Enquiry Committee hushed up the inquiry and deliberately prevented the respondent No. 1/delinquent from examining himself and his witnesses. Nothing would have happened had he been given sufficient time to do so, since there is a provision in the rule for extension of time to complete the inquiry beyond 120 days with the permission of the Deputy Director of Education. But then it appears that the Enquiry Committee as well as the petitioner management were in ugly haste to dismiss him from the service.

       In the result Court makes the following order.

       The judgment and order of the School Tribunal dated 29.10.2002 is confirmed. The writ petition is dismissed with costs of Rs. 10,000/- payable to the respondent No. 1 within eight weeks from the date of this order. It is clarified that the order made by the Tribunal about the continuity of service would mean continuity of service with all monetary benefits arising therefrom.