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2011 (6) ALLMR 625
In the High Court of Bombay at Aurangabad
S.S. SHINDE
Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Another
Versus
The State of Maharashtra & Others
WRIT PETITION NO.10032 OF 2010
Decided on : 28-09-2011
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Sections 9 and 11-MEPS Rules, 1981, Rules 36 and 37-School Tribunal-Powers of-Constitution of Inquiry Committee found to be unjust-Tribunal not ordered for reconcilitation of committee-Itself dealt with matter on merits-Challenged-Management made no application for reconstitution-Management kept on justifying constitution of Inquiry Committee-Extremely biased conduct of Management and Inquiry Committee-Adjudication by Tribunal on merits cannot be said to be beyond jurisdiction or powers of School Tribunal.-In the present case, admittedly petitioners herein did not file any application or made prayer for reconstituting the inquiry committee and to proceed further for inquiry by newly reconstituted committee. On the contrary, from reading the reply filed by the petitioners herein before the School Tribunal, it is abundantly clear that the petitioners went on justifying constitution of the Committee and stating in the reply that no fault can be attributed with the constitution of the Committee. Therefore, in absence of such prayer, the School Tribunal proceeded further and dealt with all the charges which were levelled against the appellant i.e. respondent No. 3 herein. Therefore, in opinion, further adjudication by the Tribunal on merits of the matter cannot be said to be beyond jurisdiction or powers of the School Tribunal. In the facts of this case as it is apparent from the findings recorded by the School Tribunal, that as the case in hand is a case of victimization and petitioner-Management as well as the Inquiry Committee having joined hands against the delinquent right from the beginning, no premium can be put over the action of the petitioner-Management and Inquiry Committee who threw the principles of natural justice in the air. It would be a travesty of justice, in these circumstances, to allow the petitioner-Management to once again hold inquiry in such an extreme case.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 11(2)-Grant of consequential relief-Suspension-Backwages for period of suspension granted merely on basis of oral submissions-Improper-No specific pleadings, prayers and evidence for payment of backwages before Tribunal-No application or pleadings before Tribunal by appellant stating that she was not gainfully employed during period of suspension-Grant of backwages by Tribunal unjust and improper-Not sustainable-Set aside.-In the present case, the School Tribunal, while directing the petitioners to pay back wages to the appellant, in para 40, held that :
"40. Before parting with this judgment learned counsel for appellant in course of arguments argued that appellant was kept under suspension from 14.11.2006 till today. She is not gainfully employed anywhere during this period and hence she is entitled for back wages from the date of her suspension. No rebuttal argument by other side. I agree with this submission and find that appellant is entitled for full back wages subtracting subsistence allowance already paid to her."
Bare perusal of above reproduced para 40 of the judgment of the School Tribunal would make it abundantly clear that, the advocate for the appellant, in the course of arguments, argued that the appellant was kept under suspension from 14.11.2006 till the appeal is finally heard. It was argued that the appellant was not gainfully employed anywhere during the period of suspension and termination and therefore, she is entitled to back wages from the date of her suspension. The Tribunal has observed that no rebuttal argument by other side. Therefore, it appears that, the School Tribunal has considered only oral submission of the Counsel appearing for the appellant, in the absence of any specific pleadings, prayers and evidence for payment of back wages. There was no application or pleadings before the School Tribunal on oath by the appellant stating that she was not gainfully employed from the date of suspension till reinstatement. Therefore, in considered opinion, finding recorded by the Tribunal in clauses 3 to 5 of the operative order, in respect of payment of back wages, cannot be sustained, in the light of law laid down by this Court and Honourable Supreme Court in respect of payment of back wages.
Civil Procedure Code, 1908 - Order XLI, Rule 27 - See Maharashtra Employee of Private School (Condition of Service) Regulation Act, 1978, Section 9.
Constitution of India - Article 227 - Writ petition challenging reinstatement of teacher.-
Judgment of school Tribunal, reinstating respondent-3, teacher in service with backwages, based on proper appreciation of documents on record, warrants no interference in exercise of writ jurisdiction.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITION OF SERVICE) REGULATION ACT, 1978 - Section 9 - CPC, Section 107, Order XLI, Rule 27 - Power of School Tribunal to take additional evidence. Where Management or Employee sought production of supplementary evidence on record to prove their contentions therefore School Tribunal can exercise its power to take additional evidence on record subject to provisions of Section 107 read with Order XLI, Rule 27 of CPC.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) RULES, 1981 - Rule 35 - Suspension of employees - To suspend an employee from services, obtaining of prior approval of Education Officer by Management is necessary.
It has also come on record that the appellant was suspended by suspension letter. The appellant made representation to the Education Officer. The Education Officer refused to approve suspension of the appellant as per his letter. From careful perusal of the material brought on record. I do not find that, there arose extraordinary situation to suspend services of the appellant without taking prior approval of the Education Officer, as contemplated tinder Rules. No doubt, the Management can suspend services of an employee without prior approval of the Education Officer, but for that there should be extraordinary situation. However, in the facts of this case, nothing is brought on record to suggest that there was extraordinary situation existing so as to take emergent steps to suspend services of the appellant without taking prior approval of the Education Officer (Primary), Zilla Parishad, Aurangabad. It is also not in dispute that the Education Officer declined to approve suspension of the appellant as per his letter. Therefore, taking into consideration facts involved in the present case, conclusion is reached by the School Tribunal that the Management of the petitioner- school/Institution is dominated by the members of Bagade family.
1 Heard learned Counsel for petitioners.
Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. Learned Counsel for respective respondents waive service of Rule.
2 This writ petition is filed challenging the judgment and order dated 20.06.2009, passed by the Presiding Officer, School Tribunal, Aurangabad, in Appeal No.15/2007.
Petitioners herein are Respondents No.1 & 2 in the said appeal and Respondent No.3 herein is the original appellant. The said appeal was filed by Respondent No.3 herein challenging the order of termination dated 15.06.2007. The copy of the appeal memo and also grounds taken in the appeal are placed on record at Exhibit-A on pages 17 to 69 of the compilation of this Writ Petition. Therefore, the facts leading to filing of such appeal are not repeated herein since those are extensively stated by the appellant in the appeal memo.
It appears that after recording the evidence, considering pleadings of the parties and documentary evidence, the Presiding Officer, School Tribunal, Aurangabad, by his judgment and order dated 20.06.2009, allowed the appeal filed by Respondent No.3 herein thereby setting aside the termination and also awarding back wages. Hence this writ petition.
3. Learned Counsel appearing for the petitioners submits that the Presiding Officer, School Tribunal, has failed to appreciate that if the inquiry committee constituted by the Management is in violation of the Rules, the Presiding Officer, School Tribunal, Aurangabad, ought to have directed the Management to constitute the Committee afresh and then conduct denovoinquiry, as directed in various judgments and this aspect has not been taken into consideration. It is further submitted that subsistence allowance is paid to the appellant and even the inquiry does not vitiate on the ground of non payment of subsistence allowance as the appellant remained present for inquiry, regularly. It is further submitted that the proceedings of the Committee reveal that the appellant as well as her representative have not cooperated with the inquiry and their conduct show that they behaved arrogantly during the course of the inquiry. It is further submitted that the School Tribunal has failed to appreciate that all the documents were supplied to the appellant, full opportunity was given in the inquiry and even the questionnaire was supplied to the appellant. Therefore, there was no violation of principles of natural justice, as alleged by the appellant.
4. It is further submitted that the Tribunal should have taken into consideration that the appellant has not worked during pendency of appeal and, therefore, the principle of “No work, no pay” is applicable in the instant case, as such, granting full back wages to the appellant is illegal, contrary to the settled position of law. Even otherwise, the appellant failed to show that the appellant was not gainfully employed during the pendency of appeal and not complied the conditions to grant back wages. It is further submitted that the School Tribunal has not framed the issues as required and not replied it and, therefore, the impugned judgment and order is required to be set aside. It is further submitted that the whole approach of the Presiding Officer, School Tribunal, was prejudiced against the petitioners herein and he has recorded the findings on presumptions and assumptions, which is not sustainable in the eye of law. It is further submitted that the School Tribunal has given much weightage to the letter dated 18.05.2005 seeking assistance of the employees to pay tax of the school building taken on rent and there was understanding that later on the said amount would be repaid to the employees after getting rent from the Government or after making arrangement by the owner. It is further submitted that the alleged charges in the charge sheet are proved and inquiry report dated 29.05.2007 is based on documentary evidence and, therefore, the
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