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CASE NO.: Appeal (civil)  640 of 2007

PETITIONER: VIDYA VIKAS MANDAL & ANR

RESPONDENT: THE EDUCATION OFFICER & ANR

DATE OF JUDGMENT: 07/02/2007

BENCH: Dr. AR. LAKSHMANAN & ALTAMAS KABIR

JUDGMENT:

JUDGMENT (@ S.L.P.(C) No.7613/2004)

Dr. AR. Lakshmanan, J.

       Heard Mr. Manish Pitale, learned counsel for the appellants, Mr.  S.S. Shinde, learned counsel for the Respondent no.1 and Mr.  Nikhil Nayyar, learned counsel for the Respondent no.2.         Leave granted.         This appeal is directed against the final judgment and order dated  14.7.2003 in L.P.A. No.66 of 2003 passed by the High Court of  Bombay, Nagpur Bench, Nagpur.  A charge-sheet was served on  the delinquent employee.  Seven  charges were leveled against  him.  Apart from the charge of harassment and misbehaviour with  girl students, other charges of inefficiency, in-subordination and  corruption were also specified against respondent no.2, namely,  Subhash Lingawar.  A Inquiry Committee consisting of three  members was constituted, which consisted of Mr. P.S. Donadkar  (Nominated by the Management), Mr. P.V. Madamshettiwar  (Deliquent’s representative) and Mrs. V.S. Ramteke (State  Awardee teacher).  Respondent no.2 submitted his reply to the  aforesaid charge sheet.  The inquiry was initiated and the first  meeting was held on 10.10.1998.  During the pendency of the  inquiry, respondent no.2 was not suspended and he continued to  attend to his duties.  In the inquiry proceedings, it was found that  the respondent no.2 was being non-cooperative, two members of  the Inquiry Committee, i.e. Nominee of respondent no.2 and the  State Awardee teacher were trying to stall the proceedings.  Upon  conclusion of the inquiry, as required under Rule 37 (4) of the  Rules, the Inquiry Committee sent to respondent no.2 the  summary proceedings and copies of statements of witnesses for  him to submit his explanation within 7 days under Rule 37 (5).   Thus, respondent no.2 had time of 7 days till 28.2.2000 to submit  his explanation.  The respondent no.2 failed to submit his  explanation to the Inquiry Committee.  Thus, under Rule 37 (6),  the Inquiry Committee was required to communicate its findings to  the Management within 10 days.  The  requirement was  mandatory and the period of 10 days expired on 9.3.2000.  Mr.  P.S. Donadkar, the management nominee and the Convenor of  the Inquiry Committee sent his report and findings to the  Management.  In this report, the aforesaid Member and Convenor  of the Inquiry Committee found all charges proved against  respondent no.2 and having been found guilty, punishment of  termination from service was recommended against respondent  no.2.  It was also recorded in the aforesaid report and findings  that the other two members of the Inquiry Committee had not  submitted their findings and that during the course of inquiry they

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had sought to favour respondent no.2 and that their attitude was  not appropriate.  As the appellant Management received the  findings of only the Convenor of the Inquiry Committee within the  period of 10 days mandated by Rule 37 (6) of the Rules, it  decided to terminate the services of respondent no.2 on the basis  of the recommendation and the findings received.  The appellant  Management issued order terminating the service of respondent  no.2 w.e.f. 1.4.2000, thereby terminating the service of  respondent no.2.

       The findings of the other two members of the Inquiry Committee  dated 21.3.2000 and 29.3.2000 were received by the appellant  Management.  According to the appellant, these findings were no  findings in the eyes of law because the period of ten days  mandated by Rule 37 (6) of the Rules whereby findings were to be  submitted to the appellant Management, had expired on 9.3.2000  itself.  Therefore, Mr. Manish Pitale, learned counsel appearing  for the appellant-Management submitted that the aforesaid  findings of the two members were meaningless.  The findings of  the State Awardee teacher leveled wild allegations against the  Convenor and Management nominee Member of the Inquiry  Committee.  The third member, the nominee of respondent no.2,  simply adopted the findings of the aforesaid State Awardee  teacher.  In their findings both these members exonerated the  respondent no.2.

       The respondent no.2 filed an appeal bearing Appeal no.41 of  2000 before the Presiding Officer School Tribunal, Nagpur,  challenging the aforesaid order of termination of service passed  by the appellant Management.  The said Tribunal allowed the  appeal of Respondent no.2 mainly on the ground that two of the  three members of the Inquiry Committee had exonerated the  respondent no.2.  The Tribunal directed to reinstate respondent  no.2 and to pay full back wages to him.   Aggrieved by the  aforesaid order, the Management challenged the same before the  Nagpur Bench of the Bombay High Court by filing a writ petition.   The Learned Single Judge of the High Court dismissed the writ  petition only on the ground that two of the three members had  exonerated the respondent no.2.  Aggrieved by the said order, the  Management filed Letters Patent Appeal no.66/2003 before the  Division Bench of the High Court.  In this appeal, the Management  specifically raised the question of interpretation of Rule 37(6) of  the aforesaid Rules to show that findings of the two members  given after the expiry of the mandatory period of ten days were no  findings in the eyes of law and that the Management was not  bound to accept the same.

       The Division Bench, however, dismissed the appeal again only on  the ground that two of the three members of the Inquiry  Committee had exonerated the respondent no.2.  The present  appeal was filed against the said order.  The Management also  filed review before the Division Bench of the High Court, which  passed the orders in the Letters Patent Appeal.  This review  application was also withdrawn with liberty to approach this Court  by way of special leave petition to challenge the order dated  14.7.2003 passed in L.P.A. no.66/2003.

       We heard the learned counsel appearing for the respective  parties.  Mr. Manish Pitale, learned counsel for the appellants,  submitted that the courts below were not justified in holding  against the appellants ignoring the provision of Rule 37 (6) of the  Maharashtra Employees of Private Schools (Conditions of  Service) Rules, 1981.  According to the learned counsel, the said  Rule is mandatory in nature.  It is further submitted that the  findings given by two members of the Inquiry Committee

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exonerating  the respondent no.2 were submitted after the  mandatory period of ten days specified in Rule 37 (6) of the  aforesaid Rules had expired.  Therefore, he submitted that the  findings given by the two members of the Inquiry Committee after  expiry of the mandatory period cannot be binding on the  appellant-Management while deciding the question of taking  action against respondent no.2.  In support of the above  submission, our attention was drawn to sub-Rule (4) (5) & (6) of  Rule 37 of the aforesaid Rules, which read thus: "37  (4)        The Convenor of the Inquiry  Committee shall forward to the employee or the  Head, as the case may be a summary of the  proceedings and copies of statements of witnesses,  if any, by registered post acknowledgment due  within four days of completion of the above steps  and allow him a time of seven days to offer his  further explanation, if any. (5)     The employee or the Head, as the case may  be shall submit his further explanation to the  Convener of the Inquiry Committee within a period  of seven days from the date of receipt of the  summary of proceedings etc. either personally or by  registered post acknowledgment due. (6)     On receipt of such further explanation or if  no explanation is offered within the aforesaid time  the Inquiry Committee shall complete the inquiry  and communicate its findings on the charges  against the employee and its decision on the basis  of these findings to the Management for specific  action to be taken against the employee or the  Head, as the case may be, within ten days after the  date fixed for receipt of further explanation.  It shall  also forward a copy of the same by registered post  acknowledgment due to the employee or the Head,  as the case may be.  A copy of the findings and  decision shall also be endorsed to the Education  Officer or the Deputy Director, as the case may be,  by registered post acknowledgment due.   Thereafter, the decision of the Inquiry Committee  shall be implemented by the Management which  shall issue necessary orders within seven days from  the date of receipt of decision of the Inquiry  Committee, by registered post acknowledgment  due.  The Management shall also endorse a copy of  its order to the Education Officer or the Deputy  Director as the case may be."

       Our attention was also drawn to Rule 36 sub-clause 2(a), which  applies to the case of an employee and reads thus: "36 (2)(a)      In the case of an employee- (i)     one member from amongst the members of  the Management to be nominated by the Management,  or by the President of the Management if so authorized  by the Management, whose name shall be  communicated to the Chief Executive Officer within 15  days from the date of the decision of the Management. (ii)    one member to be nominated by the  employee from amongst the employees of any private  school; (iii)   one member chosen by the Chief Executive  Officer from the panel of teachers on whom  State/National Award has been conferred."

       As rightly pointed out by the learned counsel for the appellants,  Rule 37 (6), which is mandatory in nature, has not been strictly

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complied with.  The Inquiry Committee comprising of three  members, as already noticed, only one member nominated by  the Management has submitted his Inquiry report within the time  stipulated as per Rule 37 (6) and admittedly, the other two  members nominated by the employee and an independent  member have not submitted their report within the time  prescribed under Rule 37 (6).  However, the learned Judges of  the Division Bench, though noticed that the two members out of  three found the employee not guilty, failed to appreciate that the  said findings by the two members of the committee were  submitted after the expiry of the period prescribed under Rule  37(6).  In our opinion, the report submitted by individual  members is also not in accordance with the Rules.  When the  Committee of three members are appointed to inquire into a  particular matter, all the three should submit their combined  report whether consenting or otherwise.  Since the report is not  in accordance with the mandatory provisions, the Tribunal and  the learned Single Judge and also the Division Bench of the High  Court have committed a serious error in accepting the said report  and acted on it and thereby ordering the reinstatement with back  wages.  Since the reinstatement and back wages now ordered  are quite contrary to the mandatory provisions of Rule 37 (6), we  have no hesitation in setting aside the order passed by the  Tribunal,  and learned Single Judge and also of the Division  Bench of the High Court.  In  

addition, we also set aside the order passed by the  Management based on the report submitted by the single  member of the Committee, which is also quite contrary to the  Rules.                    In view of the order now passed by this Court, the Rule 36(2)  (a) is now to be invoked and as per the said Rule, one member  from amongst the members of the Management is to be  nominated by the Management or by the President of the  Management if so authorised by the Management, and one  member is to be nominated from amongst the employees of  any private school and the third member to be chosen by the  Chief Executive Officer from the panel of teachers on whom  State/National   Award  has  been  conferred.    We direct  

the Management of the School to constitute the Committee in  accordance with sub-Rules (i) (ii) & (iii) of Rule 36(2)(a) to go  into the matter afresh.  The respondent no.2, the employee,  will be now treated under suspension and he will be entitled to  the subsistence allowance as per rules with effect from the  date of termination of his services.  The inquiry shall be  completed by the Committee within a period of six months  from the date of their nomination/constitution.                  The Civil Appeal is disposed of on the above terms.  No costs.