Procedural compliance in the enquiry process and the sustainability of termination based on enquiry reports.

1. Heard Shri S.J. Kadu, the learned advocate for the petitioner, Shri N.R. Patil, the learned A.G.P. for the respondent no.1 and Shri M.Y. Wadodkar, the learned advocate for the respondents 2 and 3.

2. Rule. Rule is made returnable forthwith.

3. The petitioner has filed this writ petition challenging the order passed by the School Tribunal dismissing the appeal filed by him and maintaining the order issued by the respondent/Management terminating his services.

4. The petitioner was appointed as an Assistant Teacher in the school administered by the respondent no.2/Society in 1971. In 1979, the services of the petitioner were terminated, however, the order of termination was set aside by the Competent Authority and the petitioner was reinstated in service. In 1980, the services of the petitioner were again terminated and this termination order was also set aside by the Competent Authority. The respondent no.2/Society had challenged the order passed by the Competent Authority in appeal before the Director of Education which came to be dismissed. The petitioner continued in school administered by the respondent no.2/Society. There is no dispute about the fact that the appointment of the petitioner was made after following the due procedure. The appointment of the petitioner was approved by the Education Officer.

On 1st July, 2003 the petitioner came to be promoted as the Headmaster of the school and the Education Officer by the communication dated 5th November, 2004 approved the promotion of the petitioner.

The services of the petitioner came to be terminated by the order dated 28th March, 2007, after conducting the enquiry. The petitioner had challenged the termination order before the School Tribunal by filing appeal which came to be dismissed by the impugned order. The petitioner being aggrieved by the order passed by the School Tribunal upholding the termination order, has filed this writ petition.

5. Shri Kadu, the learned advocate for the petitioner has raised various contentions. It is submitted that the respondent no.2/Society had passed the resolution dated 9th November, 2006 to conduct enquiry against the petitioner through the enquiry committee as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as “Rules of 1981”). It is submitted that by this resolution Smt. Kundatai Vijaykar the President of the respondent no.2/Society was nominated as the Member of the enquiry committee and also as the Convenor of the enquiry committee. Relying on the provisions of Rule 36(5) of the Rules of 1981, Shri Kadu, the learned advocate submitted that the President of the respondent no.2/Society could not have acted in dual capacity i.e. as the Convenor and as the member of the enquiry committee and it is a substantial defect in conducting the enquiry which vitiates the enquiry. It is submitted that the chargesheet given to the petitioner was prepared by the Chief Executive Officer which is again in violation of the provisions of Rule 37(1) of the Rules of 1981 which requires that the chargesheet in the case of enquiry proposed against the Headmaster of the school is required to be prepared by the Management. The learned advocate has relied on the judgment given in the case of Gopal Damduji Shelwatkar V/s. Gramin Uddhar Society, Kamptee and another reported in 2000(2) Mh.L.J. 786 to support the above contention. It is submitted that the chargesheet should have been sent to the petitioner by the President of the respondent no.2/Society, however, it is sent by the Chief Executive Officer. To substantiate the submission that this defect is a substantive defect, the learned advocate has relied on the principle that if law requires a thing to be done in a particular manner, it should be done in that manner only.

The learned advocate has submitted that two members of the enquiry committee i.e. President of the respondent no.2/Society and the State Awardee