Back
2011 Supreme(Bom) 633
2011 (4) ALLMR 732
In the High Court of Bombay at Nagpur
JUSTICE B.P. DHARMADHIKARI & P.D. KODE
Kewalram s/o Tulshiram Kiranapure
Versus
Manoharbhai Shikshan Prasarak Mandal & Others
WRIT PETITION NO.5607 OF 2010
Decided On: 13-06-2011
For the Petitioner:A.D. Mohgaonkar, Advocate.
For the Respondents:R1 to R3 R.V. Gaikwad, Advocate, R4 , A.S. Sonare, AGP.
Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 4-MEPS Rules, 1981, Rules 29, 30 and 31-Appeal-Against order of management, imposing minor punishment-Management travelled beyond its power while imposing minor punishment-Deputy Director of Education vested with powers to interfere with any order of minor punishment as an appellate authority-Refusal of Deputy Director of Education to entertain appeal unsustainable-Advise by him to approach school tribunal, contrary to law.-The respondent No. 4 Deputy Director has been given powers to interfere with any order of minor punishment as an appellate authority. It cannot be accepted that merely because the management adopts some other measures not envisaged in 1981 Rules or devises punishment not prescribed, his those powers are taken away. Scheme above shows that law never restricted power of respondent 4 in any manner so as to confine it to entertaining an appeal only against "legal punishment" and denied it or expected him to loose that power in case of such punishment not contemplated by it. Refusal of said respondent to entertain the appeal is therefore unsustainable. Respondent 4 has to examine the appeal on merits as an appellate authority to find out whether there is any cause or conduct warranting the punishment and then is proportion or legality. Here said respondent has refused to exercise that jurisdiction. Advise by him to approach school tribunal is also contrary to law. As respondent 4 has refused to entertain appeal of petitioner, it is unnecessary for Court to go into other challenges and the consideration on merit has to be left to him.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 4 and 6-MEPS Rules, 1981, Rules 29, 30 and 31-Minor punishment -Imposition of-Power of management- Exercise of-Minor penalties like withholding of only one increment can be imposed by management as prescribed by rules-Imposition of punishment of withholding 2 increments is in excess of powers vested in management-By exercising powers vested in it, respondent management cannot be permitted to defeat Statutory Scheme of 1977 Act and 1981 Rules.-The scheme of the 1977 Act and 1981 Rules therefore is provide a complete code in the matter of discipline and conduct. The management therefore cannot travel beyond the procedure prescribed thereunder. The relevant portion of the rules highlighted above demonstrates that any of the minor penalties can be inflicted upon the petitioner by respondent management. Language thereof is very specific and it employs singular number is word used is "increment" and not "increments". Use of prefix "an" or verb "is" in conjunction with it also emphasizes this fact only. Punishment of withholding only one increment is therefore envisaged by these rules. Against such minor penalty, an appeal is provided before the Deputy Director. If it is major penalty, appeal is provided before that school tribunal. Thus in disciplinary matters the 1977 Act and 1981 Rules contain a self sufficient and complete code. Hence, that "completeness" or nature cannot be allowed to be defeated by permit- ting the management to impose some other adverse measure as punishment or to invent/use it as such. The punishment order dated 23.3.2009 in present matter is in excess of powers conferred upon the management by the law. By exercising powers not vested in it, the respondent management can not be permitted to defeat this statutory scheme.
1. Heard.
2. Rule. By consent, Rule is made returnable forthwith and is heard finally.
3. It is the contention that impugned order dated 20.11.2009 refusing to entertain appeal filed by the petitioner is erroneous. The punishment imposed upon the petitioner is of withholding two increments permanently denial of next time bound promotion and not to permit him to function as internal or external examiner. The Deputy Director of Education has informed the petitioner to approach School Tribunal in the matter. Under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (referred to as “1977 Act” hereinafter), the appeal to the School Tribunal is maintainable only against the removal, dismissal, otherwise termination super session and reduction.
4. Rule 29 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (referred to as “1981 Rules” hereinafter) framed under the 1977 Act contemplates an appeal to the Deputy Director within a period of 45 days from the receipt of order of punishment. In impugned order dated 20.11.2009 while refusing to entertain appeal reason seems to be only if the punishment is of withholding of an increment for a period not exceeding one year, the said appeal can be preferred to respondent no.4.
5. It is appropriate to look into the scheme of 1977 Act here. Its S. 4 prescribes terms & conditions of service of employees of private school. Subsection (1) authorises State Government to frame Rules providing for minimum qualifications & procedure for recruitment, duties, pay, allowances, post-retirement & other benefits, also other conditions of service & reservation. Its subsection (2) enables State to prescribe code of conduct and mode/manner of conducting disciplinary action for its violation. S. 16 is the rule making power of the State Government which again mentions these subjects or items. Sub-section(6) of Section 6 mandates that no employee of a private school can be suspended, dismissed or removed or otherwise terminated or shall be reduced in rank by the management except as per the provisions therein or in 1981 Rules framed thereunder. Employee dismissed or removed or otherwise terminated , reduced in rank or superseded by the management has been given right under S. 9 to appeal to a special tribunal called School Tribunal constituted under S. 8 thereof. It is settled law that in these matters the jurisdiction of civil court has been taken away. Judgment of Full Bench of this Court in 2007 (1) LJSOFT 10 = 2007 (1) Mh.L.J. 597-- St. Ulai High School & another vs. Devendraprasad Jagannath Singh can be conveniently referred for this purpose.
6. 1981 Rules contain provisions on various subjects stipulated in S.6 & S. 16 of 1977 Act. Rule 1 is about short title while Rule 2 contains relevant definitions. From Rule 3 till Rule 21, it deals with qualification & appointments/ promotions of Headmaster, Teachers & non-teaching staff, their scales of pay & allowances, categories, service book, seniority, leave, vacations, writing of their confidential reports, assessment of their work, superannuation, re-employment, pension, provident fund, work-load etc. Issues like resignations, transfer, contesting of an election are dealt with at its end by Rules 40 to 43. For present purposes, it is important to note that Rule 22 prescribes duties & code of conduct. Rule 23 regulates private tuitions, Rule 24 lays down the mode & manner of making representation, Rule 25A points out the mode & manner of termination when post is abolished, Rule 26 regulates retrenchment when the posts are abolished & Rule 27 lays down principles thereof. Removal or termination is taken care of by Rule 28 & penalties which can be imposed on employee. It also defines what is misconduct, moral turpitude, wilful & persistent negligence of duty & incompetence. Rule 30 casts some obligation upon management when it imposes punishment of withholding of incremen
