As per case facts, Respondent No.1, an Assistant Teacher, was suspended and terminated after a departmental inquiry into serious allegations of sexual misconduct with a minor student. He alleged that ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10311 OF 2019
WITH
INTERIM APPLICATION NO.9755 OF 2024
1.Shailendra Education Society,
through it’s Secretary
2.Shailendra Education Society’s
Secondary School (Marathi),
through it’s Headmaster … Petitioners
Vs.
1.Rajkumar Maruti Patil
2.Deputy Director of Education
3.Education Inspector (West Zone)
4.The State of Maharashtra … Respondents
Mr. Mihir Desai, Senior Advocate with Mr. Chetan Mali
for the Petitioners.
Ms. Madhavi Ayyaipan with Mr. Aditya Madane i/by
Talekar & Associates, for Respondent No. 1.
Smt. Mamta S. Shrivastava, AGP for Respondent Nos.2
to 4-State.
CORAM :AMIT BORKAR, J.
RESERVED ON :OCTOBER 5, 2026
PRONOUNCED ON:OCTOBER 7, 2026
JUDGMENT:
1.By the present writ petition filed under Articles 226 and 227
of the Constitution of India, the Petitioners challenge the legality,
validity, and correctness of the judgment and order dated 16 July
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.10.07
13:25:29 +0530
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2019 passed by the Presiding Officer of the School Tribunal,
Mumbai.
2.The relevant facts, as stated by the original Appellant, which
led to filing of the present writ petition are as follows. On 16 June
2008, Respondent No.1 was appointed as a Shikshan Sevak in the
category of persons with disability in Petitioner No.2 School, which
is run by Petitioner No.1 Trust. On 16 June 2013, after successfully
completing his probation period, his services were confirmed, and
he was appointed as an Assistant Teacher. His appointment and
services were approved by the Education Officer (Primary). On 19
January 2017, a girl student of Class VII wrote in her answer sheet
that Respondent No.1 used to sexually molest her friend and
classmate and that the mother of the said girl was aware of the
incident. On 20 January 2017, the teacher who was checking the
answer sheet noticed the allegation. On 21 January 2017, the said
teacher informed the Assistant Headmistress about the incident.
The teacher and the Assistant Headmistress brought the matter to
the notice of the Headmaster. The Headmaster called the mother
of the victim girl. On 23 January 2017, the mother of the victim
submitted a complaint against Respondent No.1 to the
Headmaster. The victim girl submitted a written complaint. On 25
January 2017, the mother of the victim lodged FIR No.41 of 2017
at Dahisar Police Station against Respondent No.1 under Section
354-A of the Indian Penal Code and Sections 8 and 12 of the
Protection of Children from Sexual Offences Act, 2012.
Respondent No.1 was arrested in connection with the said
offences. He remained in police custody from 26 January 2017 to
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31 January 2017 and was remanded to judicial custody on 1
February 2017.
3.It is the case of Respondent No.1 that he was not paid any
subsistence allowance during the period of his suspension.
According to him, the decision to suspend him for the purpose of
initiating a departmental enquiry was taken in the meeting held on
28 January 2017. He claims that he became entitled to subsistence
allowance from that date and that non-payment of the same was in
breach of Rules 33, 34 and 35. On 28 January 2017, the School
Committee decided to suspend Respondent No.1 from service and
to initiate a departmental enquiry against him. On 9 February
2017, Respondent No.3 granted permission for his suspension.
Respondent No.1 was placed under suspension with retrospective
effect from 25 January 2017. It is not in dispute that no
subsistence allowance was paid to him during the period of
suspension. On 11 February 2017, an order was passed suspending
Respondent No.1 from the post of sixth teacher in the Marathi
Secondary School run by the institution. On 20 February 2017, the
statement of allegations was sent to the residential address of
Respondent No.1 while he was still in judicial custody. On 28
February 2017, his mother, through an Advocate, informed the
Management that Respondent No.1 was in judicial custody and
that he would give his reply after his release. On 20 June 2017,
this Court enlarged Respondent No.1 on bail by its judgment and
order passed in Criminal Application No.1255 of 2017. One of the
conditions of bail was that he would remain outside the
jurisdiction of Dahisar Police Station, Mumbai and would not enter
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that jurisdiction except for attending the police station as directed.
On 4 August 2017, Respondent No.1 submitted his reply to the
statement of allegations and denied the allegations made against
him. In the said reply, he informed the Management that he could
not enter the school premises because of the condition imposed by
this Court while granting bail. Between 11 August 2017 and 11
September 2017, the Chief Executive Officer called upon
Respondent No.1 to submit any statement, if he desired to do so,
failing which the departmental enquiry would be commenced. On
30 October 2017, Respondent No.1, through his Advocate,
requested the Management to pay him subsistence allowance so
that he could effectively defend himself in the departmental
proceedings. He sought reinstatement with full back wages. On 6
November 2017, the Management informed him that an enquiry
would be conducted against him and directed him to nominate his
representative under Rule 36 of the MEPS Rules. On 8 November
2017, the Management Committee nominated Shri G.S.
Pandolskar as its nominee and Smt. Jui Arun Hadkar, a State
Awardee Teacher, as the other member of the Enquiry Committee.
4.On 17 November 2017, Respondent No.1 requested the
Management to keep the departmental enquiry in abeyance until
the decision in Special Case No.113 of 2017 pending before the
Special Court, Dindoshi. He again requested payment of
subsistence allowance. On 27 November 2017, the Management
refused to postpone the enquiry and again directed him to appoint
a representative under Rule 36 of the MEPS Rules. On 30
November 2017, Respondent No.1 nominated Mr. P.T. Patil as his
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representative. On 7 December 2017, the Petitioners served the
charge-sheet upon Respondent No.1. On 21 December 2017,
Respondent No.1 submitted his reply to the charge-sheet and
requested that the CCTV footage be produced and statements of
other students be recorded. It is the case of Respondent No.1 that
Rule 37(b) was violated because the first meeting of the Enquiry
Committee was held without giving him ten days' notice by
Registered Post Acknowledgment Due. According to him, such
notice was necessary to enable him to appear before the
Committee and produce evidence or examine witnesses, if any. On
28 December 2017, the Enquiry Committee held its first meeting
without giving notice to Respondent No.1 or his representative. It
is alleged that Rule 37(2)(c), (d)(ii), (iii) and Rule 37(3) were
violated. The representative of Respondent No.1 informed the
Enquiry Committee that Respondent No.1 could not personally
attend the enquiry because of the condition imposed by this Court
while granting bail. Despite this, the Committee proceeded with
the enquiry and directed the representative of Respondent No.1 to
conduct the cross-examination. Respondent No.1 himself was not
permitted to cross-examine the witnesses. The witnesses were
examined in his absence and, according to him, he was not given a
proper opportunity to cross-examine them.
5.According to Respondent No.1, once the Enquiry Committee
came to know that he was unable to attend the hearing because of
the bail condition, the hearing ought to have been adjourned in
terms of Rule 37(3). On 10 January 2018, his representative
brought several matters to the notice of the other members of the
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Enquiry Committee and the Management. It was pointed out that
the list of witnesses had not been supplied to Respondent No.1. It
was pointed out that Respondent No.1 could not participate in the
enquiry or cross-examine the witnesses because of the condition
imposed by the Court while granting bail. It was submitted that,
since the criminal case was pending, prior permission of the
concerned Court was necessary before referring to evidence which
formed part of the criminal proceedings. On 18 January 2018, the
Invitee Member of the Committee informed the representative of
Respondent No.1 that the list of witnesses on behalf of the
Management would be supplied in the next meeting to be held on
18 January 2018. The request made by Respondent No.1 to
postpone the enquiry on account of the bail condition was
rejected. The reason given was that Respondent No.1 could have
approached the Court and sought modification of the said
condition. It was stated that the enquiry could not be kept pending
because Rules 36 and 37 required the enquiry to be completed
within 120 days.
6.On 16 February 2018, Respondent No.1 filed Application
No.160 of 2018 in Criminal Bail Application No.1255 of 2017
seeking relaxation of condition No.(iii), which prevented him from
entering the limits of Dahisar. On the same day, the Presenting
Officer examined two witnesses, namely, Mugdha Shailesh Jadhav,
an Assistant Teacher working in the school, and Sunanda Chaban
Dalvi, the mother of the victim. The witnesses were examined in
the absence of Respondent No.1 and his representative. On 8
March 2018, the two members of the Enquiry Committee stated
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that Mr. P.T. Patil had been appointed as representative so that the
enquiry could proceed even in the absence of Respondent No.1. It
was recorded that, after the representative of the delinquent had
examined the witnesses, it would not be proper to give another
opportunity to the delinquent to examine them. The letter relied
upon by the Presenting Officer during cross-examination was not
supplied to Respondent No.1. The objection raised by his
representative was nevertheless rejected. The Invitee Member of
the Committee stated that all witnesses would be cross-examined
by the representative of the delinquent and that Respondent No.1
himself would not be given an opportunity to cross-examine the
witnesses. On 15 March 2018, two witnesses were examined
before the Enquiry Committee. On 20 March 2018, the
representative of Respondent No.1 requested that the documents
produced during the examination of the witness be supplied at
least to him. The other members of the Enquiry Committee held
that there was no obligation upon the Committee to supply those
documents to the representative of the delinquent. One witness
was examined. On 4 April 2018, the representative of Respondent
No.1 requested time to conduct the cross-examination of the
witnesses after taking instructions from Respondent No.1, stating
that he would not be able to properly conduct the cross-
examination without such instructions. The request was rejected
on the ground that the enquiry had been delayed earlier at the
instance of Respondent No.1 on one or the other ground. The
documents requested by Respondent No.1 were not supplied. The
Management stated that the application for those documents had
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been made under the Right to Information Act to the institution
and that the same had no bearing upon the departmental enquiry.
It was stated that steps had been taken by the institution to send
those documents to Respondent No.1. One witness was examined.
7.On 8 April 2018, one witness on behalf of the delinquent
was examined. On 17 April 2018, two witnesses on behalf of the
delinquent were examined. It is alleged that Rules 37(4), (5) and
(6) were violated. According to Respondent No.1, after completion
of the enquiry proceedings, the Enquiry Committee did not send
him, by Registered Post Acknowledgment Due, a summary of the
proceedings and copies of the statements of the witnesses within
four days. He was not given the prescribed opportunity to submit
his explanation. It is alleged that the report was prepared only by
two members of the Committee. The report submitted by the
nominee representing Respondent No.1 was not included in the
report and no copy of the same was supplied to Respondent No.1.
8.On 27 June 2018, the Enquiry Committee held a meeting
without informing the representative of Respondent No.1. The
report was prepared by two members of the Committee, namely,
the Convener and the Awardee Teacher, without considering the
report submitted by the representative of Respondent No.1. The
report recorded that the allegation on the basis of which
Respondent No.1 had been suspended was subjudice and that no
enquiry had been conducted into that allegation. However,
according to Respondent No.1, the Committee proceeded to
consider the very same allegations which formed the basis of his
suspension. On 29 June 2018, the representative of Respondent
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No.1 submitted his report. The said report was not considered by
the Enquiry Committee. On the same day, the Enquiry Committee,
by a majority of 2:1, decided to terminate the services of
Respondent No.1. On 30 June 2018, the Society terminated the
services of Mr. Rajkumar Patil on the basis of the report of the two
members of the Enquiry Committee. The Society decided to reject
the report submitted by the representative of Respondent No.1. On
6 August 2018, this Court declined to modify, at that stage,
condition No.(iii) of the bail order which prohibited Respondent
No.1 from entering the limits of Dahisar Police Station. However,
liberty was granted to him to file a fresh application after the
appeal filed by him was decided by the School Tribunal.
9.On 10 October 2018, Respondent No.1 filed an appeal before
the School Tribunal, Mumbai, challenging the termination of his
services by the Petitioner School. On 16 July 2019, the School
Tribunal passed a detailed order allowing the appeal. The Tribunal
set aside the order of termination and directed payment of 50%
back wages to Respondent No.1. On 31 August 2019, the
Petitioners approached this Court seeking quashing and setting
aside of the judgment and order passed by the School Tribunal. On
4 September 2019, this Court modified condition No.(iii) of the
order dated 20 June 2017 and permitted Respondent No.1 to enter
within the jurisdiction of Dahisar Police Station.
10.Mr. Desai, learned Senior Advocate appearing for the
Petitioners, submitted that even though the School Tribunal found
that the principles of natural justice were violated during the
enquiry, the Tribunal could have, at the most, sent the matter back
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to the stage from which the illegality had occurred. According to
him, the Tribunal could not have directed reinstatement of
Respondent No.1, particularly when the allegations against him
relate to molestation of a minor girl student in the school. He
submitted that, during the period required for completing the fresh
enquiry, Respondent No.1 could not claim back wages. According
to him, considering the serious nature of the charges, there was a
possibility that the fresh enquiry may result in dismissal of
Respondent No.1 from service. In support of his submissions, Mr.
Desai relied upon the judgments of this Court and the Supreme
Court in
Kashiram Rajaram Kathane vs. Bhartiya R.B. Damle Gram
Sudhar Tatha Shikshan Prasar Society & Others,
1997 (3) Mh.L.J.
235
, U.P. State Spinning Co. Limited vs. R.S. Pandey & Another,
(2005) SCC 264, Saindranath Jagannath Jawanjal vs. Pratibha
Shikshan Sanstha & Another,
2007 (3) Mh.L.J. 753, and Union of
India vs. Y.S. Sadhu, Ex-Inspector,
(2008) 12 SCC 30.
11.On the other hand, Ms. Ayyaipan, learned Advocate
appearing for Respondent No.1, submitted that Respondent No.1
was not paid subsistence allowance even after completion of 120
days of suspension. She submitted that the mandatory procedure
prescribed under the MEPS Rules for conducting a departmental
enquiry was not followed. According to her, although the Rules
contemplate holding the enquiry at the school premises, that
requirement cannot be applied in a manner which makes it
impossible for a suspended teacher to attend the enquiry. She
submitted that, in the present case, the bail condition imposed
upon Respondent No.1 prohibited him from entering the territorial
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limits of the concerned Police Station, which included the area of
Dahisar. Respondent No.1 had requested the Enquiry Committee to
hold the enquiry at a place outside Dahisar so that he could
personally participate in the proceedings. However, according to
her, the Enquiry Committee instead required the representative of
Respondent No.1 to conduct the cross-examination and did not
permit Respondent No.1 himself to cross-examine the witnesses.
She submitted that copies of the material documents were not
supplied to Respondent No.1. According to her, these
circumstances clearly showed that the Management was
determined to terminate the services of Respondent No.1 by
adopting whatever means were available to it.
12.Referring to the charges and particularly to the statement
recorded under Section 164 of the Code of Criminal Procedure,
Ms. Ayyaipan submitted that there were material inconsistencies in
the statement of the victim. She contended that Respondent No.1
had been falsely implicated in the criminal prosecution initiated
against him. She submitted that, even if this Court comes to the
conclusion that the departmental enquiry could be conducted
afresh, Respondent No.1 ought to be reinstated in service in the
meantime. According to her, Respondent No.1 was entitled to
receive back wages for the entire period during which he remained
out of service.
REASONS AND FINDINGS:
13.I have considered the submissions made by Mr. Desai,
learned Advocate for the Petitioners, and Ms. Ayyaipan, learned
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Advocate for Respondent No.1.
14.At the beginning, it is necessary to keep in mind that the
allegations against Respondent No.1 are serious. The allegation is
regarding sexual misconduct with a girl student studying in Class
VII and criminal proceedings were started under Section 354-A of
the Indian Penal Code and Sections 8 and 12 of the POCSO Act.
Therefore, while considering the relief, the seriousness of the
allegation cannot be kept aside. However, merely because the
allegation is serious, it cannot mean that the employee can be
deprived of the procedure which is required to be followed before
imposing a major punishment. A serious allegation continues to be
only an allegation unless the same is proved in accordance with
law.
15.The submission of the Petitioners is that even if there is some
defect in the enquiry, the proper course would be to send the
matter back to the Management from the stage where the illegality
had taken place. It is submitted that the Tribunal could not have
ended the disciplinary proceedings by directing reinstatement
along with 50% back wages. To this extent, there is substance in
the submission. The question is not whether the allegations are
serious enough to require an enquiry. There is no dispute that they
are. The question is whether the termination can remain when the
enquiry in which the misconduct was held to be proved suffered
from important defects in the procedure.
16.The legal position on this aspect is settled. In LIC v. A.
Masilamani,
(2013) 6 SCC 530,’the Supreme Court has observed in
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paragraph 16:
“It is a settled legal proposition, that once the court sets
aside an order of punishment, on the ground that the
enquiry was not properly conducted, the court cannot
reinstate the employee. It must remit the case concerned to
the disciplinary authority for it to conduct the enquiry from
the point that it stood vitiated, and conclude the same.”
17.This principle supports the submission of the Petitioners that
when the enquiry is found to be defective, the matter has to go
back to the disciplinary authority. However, the same judgment
makes it clear that while considering whether a fresh enquiry
should be allowed, the seriousness of the misconduct is required to
be considered. Paragraph 17 states:
“Whether or not the disciplinary authority should be given
an opportunity to complete the enquiry afresh from the point
that it stood vitiated depends upon the gravity of
delinquency involved.”
18.In the present case, the allegation is of sexual misconduct
against a minor student. Therefore, there can hardly be any
dispute that the allegations are serious and require to be decided
on their merits through an enquiry which is properly conducted.
19. The Petitioners have relied upon U.P. State Spinning Co. Ltd.
In paragraph 25 of that judgment, while considering the relief to
be granted where there is a defect in the disciplinary process, the
Supreme Court relied upon
Managing Director, ECIL v. B.
Karunakar,
(1993) 4 SCC 727 and held as under:
“In all cases where the enquiry officer's report is not
furnished to the delinquent employee in the disciplinary
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proceedings, the courts and tribunals should cause the copy
of the report to be furnished to the aggrieved employee if he
has not secured it before coming to the court/tribunal and
give the employee an opportunity to show how his or her
case was prejudiced because of the non-supply of the report.
If after hearing the parties, the court/tribunal comes to the
conclusion that the non-supply of the report would have
made no difference to the ultimate findings and the
punishment given, the court/tribunal should not interfere
with the order of punishment. The court/tribunal should not
mechanically set aside the order of punishment on the
ground that the report was not furnished as is regrettably
being done at present. The courts should avoid resorting to
short cuts. Since it is the courts/tribunals which will apply
their judicial mind to the question and give their reasons for
setting aside or not setting aside the order of punishment
(and not any internal appellate or revisional authority),
there would be neither a breach of the principles of natural
justice nor a denial of the reasonable opportunity. It is only if
the court/tribunal finds that the furnishing of the report
would have made a difference to the result in the case that it
should set aside the order of punishment. Where after
following the above procedure, the court/tribunal sets aside
the order of punishment, the proper relief that should be
granted is to direct reinstatement of the employee with
liberty to the authority/management to proceed with the
inquiry, by placing the employee under suspension and
continuing the inquiry from the stage of furnishing him with
the report. The question whether the employee would be
entitled to the back wages and other benefits from the date
of his dismissal to the date of his reinstatement if ordered,
should invariably be left to be decided by the authority
concerned according to law, after the culmination of the
proceedings and depending on the outcome.”
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20.The Supreme Court, in paragraph 26, directed reinstatement
without back wages and made it clear that such reinstatement was
only for the purpose of completing the disciplinary proceedings.
21. In Saindranath v. Pratibha Shikshan Sanstha, the Full Bench
of this Court has considered the position under the Maharashtra
Employees of Private Schools Act and Rules. Paragraph 65 of the
said judgment is useful in the present matter. The Court, after
considering
Dr. Harbhajan Singh Greasy, U.P. State Spinning Co.
Ltd.
and U.P. State Textile Corporation Ltd, observed:
“wherein the Supreme Court has observed that in case of no
enquiry or defective enquiry, proper relief is to set aside the
dismissal with direction to the management to hold enquiry
from the stage the illegality has crept in and that the
reinstatement is to be treated for the purposes of holding
fresh enquiry and no more. So far as backwages are
concerned, the entitlement thereof is to make dependent on
the outcome of the fresh enquiry.”
22.This principle appears to apply to the present case. At this
stage, the Court is not required to decide whether Respondent
No.1 has committed the alleged misconduct. What is required to
be considered is whether the finding of guilt and the punishment
which followed can be allowed to continue when the disciplinary
process is found to suffer from defects.
23.The next submission of Respondent No.1 is that the defect in
the enquiry was not merely a technical irregularity. It is submitted
that he was in judicial custody and was released on bail with a
condition under which he could not enter the jurisdiction of
Dahisar Police Station except for reporting to the police. It is
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submitted that although this difficulty was brought to the notice of
the Management, the enquiry was conducted in such a manner
that he could not effectively participate in it personally.
24.The right of a delinquent employee is not only that some
representative is appointed on his behalf. The employee must have
a meaningful opportunity to understand the evidence, give
necessary instructions, question the material relied upon against
him and put forward his defence before the Enquiry Committee. If
the employee is prevented from entering the place where the
enquiry is being held, the Management has to consider whether
some reasonable arrangement can be made so that the enquiry can
continue without taking away his real opportunity of defence.
25.In the present case, Respondent No.1 had informed the
Management that because of the bail condition he could not enter
the Dahisar area. He had requested that some arrangement be
made so that the enquiry could be held at another place. The
record before the Court shows that instead of resolving this
difficulty in a manner which would protect the participation of the
employee, the enquiry was continued through his representative.
Nothing has been placed before the Court to show that the
employee was given a real and effective opportunity to personally
participate in the proceedings within the limits permitted by the
criminal court. The Petitioners have submitted that Respondent
No.1 had nominated a representative and, therefore, there was no
denial of opportunity. This submission cannot be accepted. Merely
because a representative is nominated, every defect in the enquiry
does not disappear. What has to be seen is whether, considering
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the defence as a whole, a fair opportunity was given. In the
present case, Respondent No.1 has stated not only that he could
not remain personally present, but that his representative was
required to conduct the cross-examination, that he himself was not
permitted to cross-examine, that relevant documents were not
supplied and that sufficient opportunity to give instructions was
not provided. These aspects go to the question whether there was
effective participation in the enquiry.
26.Respondent No.1 has stated that the list of witnesses was not
supplied to him and that relevant documents were not made
available. He had sought CCTV footage and statements of other
students. Such requests cannot be rejected merely by stating that
the charges were serious or that the statement of allegations had
been supplied. The statement of allegations only tells the employee
what charge has been made against him. It does not give the
material by which the Management proposes to prove that charge.
27.The principles of natural justice require that the delinquent
employee should know the evidence which is proposed to be relied
upon against him and should have reasonable opportunity to
answer that evidence. It is not necessary that every request made
by an employee must be accepted. However, when the request is
connected with the defence and refusal of the same may affect the
employee's ability to meet the charge, the Enquiry Committee is
required to consider such request and give proper reasons for its
decision.
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28.There is substance in the submission of Respondent No.1
that the enquiry suffered from material defects in procedure. But
this finding does not mean that the allegations against him are
false or that he is to be declared innocent. What is found defective
is the procedure by which the charges were considered. At this
stage, there is no finding as to whether the allegations are true or
false.
29.The reliance placed by Respondent No.1 on the statement
recorded under Section 164 of the Code of Criminal Procedure
cannot result in any finding about the criminal allegation.
Respondent No.1 may have pointed out inconsistencies in the
statement and may dispute the allegation of misconduct. These are
matters which can be considered in the disciplinary proceedings if
the same are properly conducted. This Court, while exercising
jurisdiction under Articles 226 and 227, is not required to conduct
a parallel trial regarding the factual allegations of sexual
misconduct. Similarly, the fact that an FIR was registered or that
criminal proceedings are pending cannot be treated as proof of
misconduct in the departmental proceedings. The disciplinary
authority has to reach its own conclusion on the evidence which is
brought before it. Therefore, neither registration of the criminal
case nor the defence raised by Respondent No.1 can be treated as
conclusive by this Court for deciding whether the misconduct is
proved.
30.Respondent No.1 has submitted that the departmental
enquiry ought to have remained stayed until completion of the
criminal case. I am unable to accept this submission as a general
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rule. A departmental enquiry and a criminal prosecution operate in
different fields and are governed by different standards. A criminal
case is concerned with proving guilt under criminal law, whereas a
departmental proceeding considers misconduct in service.
Therefore, merely because a criminal case is pending, the
departmental enquiry does not become invalid. However, in the
facts of the present case, the question as to whether the enquiry
ought to have been stayed does not affect the decision. The
enquiry is being interfered with because the employee was not
given an effective opportunity to defend himself in the manner
required by law. Therefore, it is not necessary to decide whether,
having regard to the facts of this case, the enquiry should
necessarily have remained stayed until the criminal case was
completed.
31.There is a grievance regarding subsistence allowance.
Respondent No.1 has stated that although he was placed under
suspension, subsistence allowance was not paid to him as required
under the Rules. This issue is relevant because a suspended
employee who does not receive the amount payable during
suspension may face difficulty in properly defending himself in the
disciplinary proceedings. If there was an obligation under the
statute or Rules to pay subsistence allowance and the same was
not complied with, that question will have to be considered by the
competent authority in accordance with the applicable Rules. At
the same time, even if non-payment of subsistence allowance is
proved, it may have an effect on the validity of the disciplinary
process or on the monetary and service benefits to which the
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employee may become entitled. But the actual allegations against
the employee will still have to be decided in accordance with law.
32.The Tribunal was justified in holding that the enquiry could
not be treated as a proper basis for imposing the extreme
punishment of termination. The next question is whether the
Tribunal was justified in ending the matter and directing payment
of 50% back wages to Respondent No.1. In my view, the Tribunal
committed an error in granting 50% back wages as a consequential
relief without keeping the decision on the charges open. The
principle stated in
U.P. State Spinning Co. Ltd. is clear. Where the
punishment is set aside because the enquiry is defective, the
employee can be reinstated for the limited purpose of continuing
the disciplinary proceedings. The question of back wages and other
benefits can be decided depending upon the result of the fresh
enquiry. The same principle is found in
Saindranath. In paragraph
67, while considering a case of “no enquiry”, the Full Bench
observed:
“It is open for the School Tribunal to adopt the same route
which has been adopted by the Supreme Court in the case of
Dr. Harbhajan Singh Greasy with some other cases noted
supra but the school management cannot be allowed to
justify their action for the first time before the Tribunal in
case of no enquiry.”
33.The present case is not a case where there was no enquiry at
all. An enquiry was held, but the grievance is that it was defective.
Therefore, the part of
Saindranath which deals with the
Management trying to justify a case of “no enquiry” before the
Tribunal need not be applied in full. The principle regarding the
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course to be followed where the enquiry is defective continues to
be relevant.
34.I find substance in the submission that the seriousness of the
charge cannot be forgotten while deciding the relief. Paragraph 17
of
LIC v. A. Masilamani states that whether the disciplinary
authority should be permitted to complete the enquiry afresh
depends upon the gravity of the delinquency involved. Here, the
allegation concerns a minor girl student. If the Management is
denied an opportunity to establish or disprove the charge through
a lawful enquiry only because the earlier enquiry was defective, it
would not be proper either for the school administration or for the
employee. At the same time, the Court cannot permit the
Management to use the seriousness of the allegation as a reason
for ignoring the procedural safeguards. The seriousness of the
charge is a reason for holding a proper enquiry and not a reason
for holding an unfair enquiry. When the charge is serious, there is
greater need that the finding of misconduct should be based upon
a procedure which gives a genuine opportunity to the employee to
defend himself. The observations in paragraph 85 of
Saindranath
are relevant while considering the limits of the power of the
Tribunal. The Full Bench observed:
“Therefore, such power is available for being exercised only
in the extremely exceptional cases and in compelling
circumstances and not in a routine manner in every case.”
35.This makes it clear that procedural flexibility cannot become
the normal way of deciding disciplinary disputes. In the present
case, there is no material to show that the Management was
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completely unable to hold an enquiry. The employee had been
released on bail and he had a representative. Therefore, there was
no situation where holding an enquiry was impossible.
36.Paragraph 86 of Saindranath hold that:
“although we have observed that in certain extremely
exceptional and compelling contingencies the school
management may, in a case of grave nature of misconduct,
dismiss the employee without holding an enquiry but,
ordinarily, such an enquiry should not be dispensed with
unless it is impossible to hold.”
37.The present case cannot be placed in that exceptional
category. The Management did hold an enquiry. The difficulty is
that the enquiry was not conducted in a manner which gives
confidence that the employee had proper opportunity to meet the
evidence brought against him.
38.The Petitioners are right to the extent that the disciplinary
proceedings should be permitted to continue from the stage where
they became defective. Respondent No.1 is right to the extent that
the termination based on the defective enquiry cannot continue.
However, Respondent No.1 cannot contend that the procedural
illegality must result in unconditional reinstatement with back
wages, because the actual charges have not yet been decided
through a lawful enquiry. The relief has to be shaped in such a
manner which protects both sides. The termination order has to be
set aside because it is based on an enquiry which has not followed
the requirements of fair procedure. At the same time, the
Management must be given an opportunity to continue the
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disciplinary proceedings from the stage where the illegality or
prejudice had occurred, after properly following the Rules and the
principles of natural justice.
39.The fresh proceedings should not be treated as only a
formality. Respondent No.1 must be supplied the material which is
required to be supplied to him under law. He must be given
reasonable opportunity to inspect and meet the evidence relied
upon by the Management. His representative must be permitted to
participate effectively. If the bail condition is still relevant, the
difficulty caused by that condition must be properly considered so
that the employee is not prevented from defending himself for a
reason which is beyond his control. The Enquiry Committee shall
consider the evidence independently and record its findings
without being influenced by the observations made in this
judgment. The Management shall consider, in accordance with the
applicable Rules, the question of subsistence allowance for the
period of suspension. This issue cannot be left unattended merely
because the termination is being set aside. If any consequence
arises because of non-payment, the same shall be decided by the
competent authority in accordance with law.
40.So far as back wages are concerned, I do not find it proper to
direct payment of 50% back wages at this stage. The entitlement
to back wages cannot be decided before the disciplinary
proceedings are completed, and the charges are decided. The
principle laid down in
U.P. State Spinning Co. Ltd. requires that the
question of back wages and other service benefits should be
considered after completion of the fresh proceedings and having
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regard to the result thereof. This course avoids an unusual
situation. If Respondent No.1 is paid substantial back wages now
and the fresh enquiry establishes serious misconduct for which
dismissal is justified, the earlier monetary direction may create
difficulty with the disciplinary result. On the other hand, if
Respondent No.1 is exonerated, his claim for consequential service
benefits can be considered in accordance with law. Therefore,
keeping the question of back wages pending does not mean that
the claim is permanently rejected. It only means that the claim has
to be considered at the proper stage.
41.I am unable to accept the contention of the Petitioners that
the Tribunal ought to have dismissed the appeal altogether. The
Tribunal was right in interfering with the termination because the
enquiry suffered from material procedural defects. However, the
Tribunal was not right in granting 50% back wages and in treating
the disciplinary proceedings as closed. The decision in
LIC v. A.
Masilamani
requires that the matter be sent back to the
disciplinary authority so that it can take a fresh decision regarding
continuation of the enquiry from the stage at which the
proceedings became defective. In the present case, considering the
nature of the allegations, the Management should be given that
opportunity. Respondent No.1 has to be reinstated, but such
reinstatement will be for the purpose of completing the
disciplinary proceedings. It will not mean that the allegations are
false or that Respondent No.1 has been exonerated.
42.The observations in U.P. State Spinning Co. Ltd. are relevant.
The Supreme Court directed that:
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“Respondent 1 shall be reinstated to service but without any
back wages and other service benefits and his reinstatement
shall be solely for the purpose of completing the
departmental proceedings. His entitlements, if any, would be
adjudicated by the authorities depending upon the result of
the disciplinary proceedings.”
43.The same course, with necessary changes having regard to
the M.E.P.S. Act and Rules and the facts of the present case, would
meet the ends of justice. I hold that the impugned order of
termination cannot be allowed to continue. However, the direction
of the School Tribunal for payment of 50% back wages cannot
continue in the manner in which it has been granted. The proper
relief is to set aside the termination, restore Respondent No.1 to
service for the limited purpose of completing the disciplinary
proceedings and send the matter back to the Management from
the stage at which the enquiry became defective. 62. While
conducting the fresh enquiry, the Management shall not proceed
on the basis that the allegations have been proved. The Enquiry
Committee shall consider the material afresh from the relevant
stage, give reasonable opportunity to Respondent No.1 to
participate and defend himself and record its own findings in
accordance with the Act, Rules and principles of natural justice.
44.The question of back wages, continuity of service and other
consequential monetary or service benefits shall remain open.
These questions shall be decided only after the fresh disciplinary
proceedings are completed and according to the result of those
proceedings and the applicable Rules.
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45.In the overall view of the matter, therefore, the Petitioners
succeed only to the limited extent that the disciplinary proceedings
are required to be continued and the direction for immediate
payment of 50% back wages cannot continue. Respondent No.1
succeeds to the extent that the termination founded on the
defective enquiry has to be set aside.
46.In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
(i) The Writ Petition is partly allowed;
(ii) The judgment and order dated 16 July 2019 passed by
the School Tribunal, Mumbai, in Appeal No. 50/2018, is
modified to the extent indicated herein;
(iii) The order of termination dated 30 June 2018 passed
against Respondent No.1 is quashed and set aside;
(iv) Respondent No.1 shall be reinstated in service as
Assistant Teacher, only for the purpose of enabling the
disciplinary proceedings to be completed in accordance with
law. Such reinstatement shall not be treated as a finding of
exoneration from the charges levelled against him;
(v) The Management shall be at liberty to continue and
complete the disciplinary enquiry from the stage after service
of the charge-sheet dated 7 December 2017, namely, from
the stage of affording Respondent No.1 a proper and
effective opportunity to participate in the enquiry and defend
himself against the charges. All proceedings conducted
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subsequent to that stage shall stand set aside;
(vi) The fresh enquiry shall be conducted in accordance
with the provisions of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 and the
Rules framed thereunder, and in accordance with the
principles of natural justice;
(vii) In the fresh enquiry, Respondent No.1 shall be supplied
with the material documents relied upon by the
Management, shall be given reasonable opportunity to
inspect and meet the evidence against him, cross-examine
the witnesses in accordance with law, produce his defence
and give necessary instructions to his representative. His
representative shall be permitted to participate effectively in
the enquiry;
(viii) The Enquiry Committee shall consider the matter
afresh and shall not be influenced by the findings recorded
in the earlier enquiry, the order of termination, the judgment
of the School Tribunal or the observations made in this
judgment on the merits of the charges;
(ix) Respondent No.1 shall be entitled to subsistence
allowance and other benefits during the period of
suspension, if otherwise payable under the applicable
provisions of the MEPS Act and Rules. The Management
shall determine the said entitlement in accordance with law;
(x) The question of back wages, continuity of service and
all other consequential monetary and service benefits shall
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remain open. The same shall be determined by the
competent authority in accordance with law and the
applicable Rules after the conclusion of the fresh disciplinary
proceedings and having regard to the result thereof;
(xi) The direction issued by the School Tribunal for
payment of 50% back wages to Respondent No.1 is
accordingly set aside;
(xii) The Management shall complete the fresh disciplinary
proceedings as expeditiously as possible and, in any event,
within four months;
(xiii) It is clarified that this Court has expressed no opinion
on the truth or otherwise of the charges levelled against
Respondent No.1. The same shall be determined by the
competent authority upon consideration of the evidence in
the fresh enquiry;
(xiv) The direction of the School Tribunal granting
compensatory costs of Rs.25,000/- against Respondent No.1
Management and Rs.25,000/- personally against the Head
Master, Shri Sudam Ganpat Kumbhar, is set aside;
(xv) The Petition stands disposed of in the above terms.
There shall be no order as to costs.
(xvi) In view of disposal of the writ petition, all pending
interim application(s) stand disposed off.
(AMIT BORKAR, J.)
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