Jai Bhavani Shikshan Prasarak Mandal vs Ramesh .

JAI BHAVANI SHIKSHAN PRASARAK MANDAL … APPELLANT(S)

VERSUS

RAMESH & ORS. …RESPONDENT(S)

JUDGMENT

V. Ramasubramanian, J.

1. The removal from service of respondent No.1 herein from the

post of Principal of the Institute of Pharmacy, having been set aside

by the School Tribunal, Aurangabad and the same having been

confirmed by the learned Single Judge and the Division Bench of

the High Court, the Educational Society running the Institute of Signature Not Verified Digitally signed by SWETA BALODI Date: 2022.03.29 16:27:45 IST Reason:

Pharmacy has come up with the above appeal.

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2. We have heard the learned counsel appearing for the first

respondent and the learned counsel for the State of Maharashtra.

3. The appellant is an Educational Society registered under the

Bombay Public Trusts Act. It is running an institute of Pharmacy at

Gadhi Georai Dist., Beed. In the year 1991, the first respondent

herein was appointed as the Principal of the said Institute. In the

year 2004 disciplinary proceedings were initiated against him on

certain allegations of serious nature. The Departmental Inquiry

Committee held an inquiry in which the first respondent was given

all opportunities of fair hearing, including permission to be

represented by a lawyer. After the completion of the inquiry, the

Inquiry Committee submitted a report on 31.07.2004 holding 7 out

of 10 charges proved. Therefore, after issuing a show cause notice

enclosing a copy of the Inquiry Report, the Management passed an

order dated 19.08.2004 imposing upon the first respondent, the

penalty of removal from service.

4. The first respondent challenged the penalty before the School

Tribunal by way of an appeal under Section 9 of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act,

2 1977 (hereinafter referred to as the ‘Act’). The School Tribunal

framed five issues as arising for consideration namely: (i) Whether

the Inquiry Committee constituted by the Management to conduct

further inquiry against the employee was proper, legal and

permissible by law? (ii) Whether the Management did not pay

subsistence allowance and whether non­payment of subsistence

allowance vitiated the inquiry?; (iii) Whether the inquiry was

vitiated on account of the fact that the Management conducted the

inquiry by engaging a lawyer?; (iv) Whether the Management

conducted the inquiry by following Rule 37 of MEPS Rules, 1981?;

and (v) Whether the impugned dismissal order was legal and

sustainable in law. Out of these five issues, the Tribunal found

only the issue relating to the constitution and composition of the

Inquiry Committee to be not in accordance with the Rules.

Therefore, the said appeal was allowed by the Tribunal by an order

dated 22.06.2006, primarily on the ground that the constitution of

the Inquiry Committee was not in accordance with Rule 36(2)(b) of

3 the Maharashtra Employees of Private Schools (Conditions of

Service) Rules, 1981 (hereinafter referred to as the “MEPS Rules”).

5. The appellant­Management filed a writ petition in WP No.5387

of 2006 on the file of the High Court of Judicature at Bombay,

Aurangabad Bench. A learned Judge of the High Court dismissed

the writ petition, affirming the view taken by the School Tribunal.

6. The intra­court appeal filed by the appellant­Management was

dismissed by the division Bench, by placing reliance upon the

decision of the Full Bench of the High Court in National

Education Society, Nagpur and another vs. Mahendra, s/o

Baburao Jamkar and another1. Aggrieved by the said order the

Management is on appeal before us.

7. Since the entire dispute revolves around the constitution of

the Departmental Inquiry Committee with reference to Rule 36 of

the MEPS Rules, it is necessary first to look into Rule 36.

“36. Inquiry Committee.­ (1) If an employee is allegedly found to be guilty on (any of the grounds specified in sub­ rule (5) of Rule 28) and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The

1 2007(3) Mh.L.J 707

4 Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the head concerned by Registered Post acknowledgement due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations.

(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in sub­rule (1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The Management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say­

(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 authorised by the Management whose name shall be communicated to 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;

(b) in the case of the Head referred to in sub­rule (1)­

(i) one member who shall be the President of the Management;

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(ii) one member to be nominated by the Head from amongst the employees of any private school;

(iii) one member chosen by the President from the panel of Head Masters on whom State/National Award has been conferred.

(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub­rule (2) by Registered Post acknowledgement due to the employee or the Head referred to in sub­ rule (1), as the case may be, directing him to nominate a person on his behalf on the proposed Inquiry Committee and to forward the name alongwith the written consent of the person so nominated to the Chief Executive or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect. (4) If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such head fails to communicate the name of his nominee within the stipulated period, the Inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as provided in sub­rule (2). (5) The Convener of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the Inquiry.

(6) The meetings of the Inquiry Committee shall be held in the School premises during normal school hours or immediately thereafter, if the employee agrees and even during vacation.”

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8. Two expressions namely “Head” and “Chief Executive Officer”

used in sub­rule (1) of Rule 36 provide the fulcrum of the

controversy on hand. The expression “Head” is not defined in the

Rules. However, the expression “Chief Executive Officer” is defined

in Rule 2(1)(c) as follows:­

“Chief Executive Officer” means the Secretary, Trustee, Correspondent or a person by whatever name called who is empowered to execute the decisions taken by the Management.”

9. The word “Head” is defined in Section 2(9) of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act,

1977 as follows:­

“Head of a school” or “Head” means the person, by whatever name called in charge of the academic and administrative duties and functions of a school conducted by any Management and recognised or deemed to be recognised under this Act, and includes a principal, vice principal, head­master, head­mistress, assistant head­master, assistant head­mistress or superintendent thereof”

10. Sub­rule (2) of Rule 36 provides for the composition of the

Inquiry Committee in a particular manner in the case of “an

employee” and it provides for the composition of the Inquiry

Committee in a different manner in the case of “the Head”. In other

7 words, the Inquiry Committee can comprise of (i) one member

amongst the members of the Management, nominated by the

management or the President; (ii) one member nominated by the

employee from amongst the employees; and (iii) one member

chosen by the Chief Executive Officer from the panel of teachers, if

the inquiry is against “an employee”. But if the inquiry is against

the Head, the Inquiry Committee should comprise of: (i) the

President of the Management; (ii) one member to be nominated by

the Head from amongst the employees of any private schools; and

(iii) one member chosen by the President from the panel of Head

Masters.

11. In the case on hand, there is and there can be no dispute

about the fact that the first respondent was the Head within the

meaning of the expression in terms of Section 2(9) of the Act, as he

was the Principal of the Institute. But admittedly the first

respondent was not the Secretary, Trustee or Correspondent of the

Institute, to fall within the definition of the expression “Chief

Executive Officer” under Rule 2(1)(c) of the Rules.

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12. The main contention of the first respondent which was

accepted by the School Tribunal and the High Court was that by

virtue of Rule 36(2)(b) of the Rules, the President of the

Management should have been one of the members of the Inquiry

Committee. There is no dispute about the fact that the President of

the appellant­Society was not a member of the Inquiry Committee.

But this fact provides only one part of the story.

13. The other part of the story is that the Departmental Inquiry

Committee as originally constituted, had the President of the

appellant­Society as a Member. But the case of the management is

that by a letter dated 13.06.2004, the President requested the

appellant­Society to relieve him due to ill health. Therefore, by a

letter dated 14.06.2004 one of the Vice­Presidents was requested to

be part of the Inquiry Committee. But the said Vice­ President also

recused due to family problems. Therefore, by a letter dated

16.06.2004 another Vice­President was nominated to be part of the

Inquiry Committee. The said Vice­President also opted out.

Therefore, by a Resolution dated 22.06.2004, the Management

decided to confer all the powers of the President to one Shri

9 Amarsingh Shivaji Rao Pandit. The said resolution reads as

follows:­

“Resolution no. 4:­ The President Mr. Shivajirao Ankushrao Pandit is the president and inviter of the Departmental Enquiry Committee for inquiry of Mr. Kalkotwar R. S. (Suspended Principal). Therefore, he is president of the enquiry committee for Departmental enquiry of Mr. Kalkotwar, but Mr. Shivajirao Ankushrao Pandit by his application due to ill health and as per advice of doctors have intimation to take rest. His application and documents annexed thereto have been considered and his excuse appears reasonable. Therefore, all the powers of the president of Jaibhawani Shikshan Prasarak regarding the work to conduct the Enquiry id hereby given to Mr. Amarsingh Shivajirao Pandit. Therefore, it was unanimously decided by all that, henceforth, Mr. Amarsingh Shivajirao Pandit will see the work as president and inviter of the departmental enquiry committee conducting inquiry of Mr. Kalkotwar R.S.”

14. But the School Tribunal held that the aforesaid Resolution

dated 22.06.2004 surfaced only after the conclusion of the

arguments in the appeal and that, therefore, it could have been

prepared as an afterthought. The learned Single Judge of the High

Court refused to interfere with this finding of fact, on the ground

that the supervisory jurisdiction of the High Court was limited

under Article 227 of the Constitution.

15. But the School Tribunal as well as the High Court omitted to

take note of the very pleadings of the first respondent in his appeal

10 before the Tribunal. In paragraph 7 of the Memorandum of Appeal

submitted by the first respondent before the School Tribunal, he

admitted that the charge­sheet was signed by Shri Shivaji Rao

Pandit, the President of the Society. In paragraph 9 of the

Memorandum of Appeal, the respondent No.1 also admitted that by

a letter dated 26.06.2004 he was informed about the ill health of

the President of the Society and the appointment of Shri Amarsingh

Shivaji Rao Pandit in his place. Paragraphs 9 and 10 of the

Memorandum of Appeal filed by the first respondent herein, before

the School Tribunal reads as follows:­

“The appellant states that when the inquiry was under

progress, the Administrative officer of the Respondent No. 1 Society, vide his letter dated 26.6.2004, informed the appellant that since the President of the Society was ill, his representative Shri. Amarsing Shivajirao Pandit, who is the Member of the Respondent No. 1 Society, shall be the Convenor of the Inquiry Committee. A copy of this letter dated 26.6.2004 issued by the Administrative officer of the Respondent No.1 Society is annexed herewith and marked as EXHIBIT “G”.

The appellant further states that vide letter dated 30.6.2004, the Administrative Officer of the Respondent No. 1 Society has issued a Corrigendum whereby it was informed that Shri Amarsinh Pandit would act as the Convenor of the Inquiry Committee and the President during the course of the Inquiry. A copy of the said Corrigendum dated 30.6.2004, issued by the Administrative Officer of the

11 Respondent No. 1 is annexed herewith and marked as EXHIBIT “H”.”

16. Unfortunately the School Tribunal as well as the High Court

failed to take note of the very pleadings of the first respondent with

regard to the circumstances in which the President of the Society

could not continue as part of the Inquiry Committee. Therefore, the

order of the School Tribunal was vitiated by perversity.

17. In any case, Rule 36(2)(a) begins with the words “in the case of

an employee”. Rule 36(2)(b) begins with the words “in the case of the

Head referred to in sub­rule (1)”.

18. The interpretation given by the School Tribunal and the High

Court to the aforesaid Rule would have been acceptable, if Rule

36(2)(b) had began only with the words “in the case of the Head”.

But it begins with the words “in the case of the Head referred to in

sub­rule (1)”.

19. Sub­rule (1) refers to the Head who is also the Chief Executive

Officer. Therefore, clause (b) of sub­rule (2) of Rule 36 should be

construed to apply only to a person who is the “Head” and who is

12 also the “Chief Executive Officer”. Otherwise the words “referred in

sub­rule (1)” appearing in clause (b) would become redundant.

20. The Division Bench of the High Court relied upon the full

Bench decision of the High Court in National Education Society

(supra), to come to the conclusion that irrespective of whether the

Head of the Institute is also the Chief Executive Officer or not, Rule

36(2)(b) mandates the President to be a member of the Inquiry

Committee. A perusal of the Judgment of the Full Bench of the High

Court of Bombay in National Education Society (supra) shows

that the full Bench framed two questions for its consideration.

Question No.2 framed by the Full Bench reads as follows:­

“Whether the President of the management has to be a member of the Enquiry Committee as specified in Rule 36(2)

(b)(i) for holding disciplinary enquiry against the Head, whether or not he is the Chief Executive Officer within the meaning of Rule 2(c) of the Rules of 1981.”

21. The above question was taken up for consideration by the full

Bench in Paragraph 17 of its decision. In paragraphs 18 and 19, the

full Bench held as under:­

“18. Rule 36(1)(a) of the Rules provides for constitution of Inquiry Committee in respect of an employee while Rule 36(2)(b) provides for constitution of Inquiry Committee for the Head. We have already quoted the definition of “Head” in

13 terms of Section 2(9) of the Act. If it is held that there is no requirement for the President of the management to be a member of the Inquiry Committee in case of the Head who is not the Chief Executive Officer, providing separate Inquiry Committee for the Head in Rule 36(2)(b) would be nugatory. In case such an interpretation is accepted Head of the school would be an employee for the purposes of Rule 36(2)(a) and there was no need to have separate constitution of Inquiry Committee in terms of Section 36(2)(b). It is well settled that the Legislature does not use any word unnecessarily. It would be appropriate to quote paragraph 9 of the judgment of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported in MANU/SC/0077/1987 :

[1987]3SCR317. In para 9, the Apex Court observed as under:

…Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily….

19. We, therefore, hold that in case of Head whether or not he is empowered to act as Chief Executive Officer, the President of the management shall be a member of the Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the Rules of 1981.”

22. As could be seen from the portion of the Judgment extracted

above, the full Bench was unduly carried away by the fact that the

14 Head of an Institution will become equated to an employee, if it was

held that the President of the Society need not be a member of the

Inquiry Committee. But what the Full Bench omitted to take note of

was that the Chief Executive Officer of a Society, such as the

President, Secretary or Treasurer cannot be an employee of the

Institution run by the Society and that a Chief Executive Officer

such as the President or Secretary is liable to get elected and not

entitled to remuneration. On the other hand, the Head of the

Institution is essentially an employee who is entitled to

remuneration, seniority, promotion, continuance in service till the

age of superannuation etc., and who is subject to the disciplinary

control of the Management. In fact the President or Secretary of the

Society cannot be removed under the MEPS Rules. But the Head of

the Institution can be removed only in terms of the Rules.

Therefore, the interpretation given by the Full Bench of the High

Court of Bombay in National Education Society (supra), under

Rule 36(2)(b) may not be correct.

23. In any case, the High Court, in the impugned order, failed to

take the note of doctrine of necessity. Once it is admitted, (i) that

15 the disciplinary proceedings commenced with an Inquiry Committee

of which the President was a member; and (ii) that subsequently he

was replaced by someone due to ill health, the doctrine of necessity

would come into play. Hence the impugned orders of the High Court

and the School Tribunal are liable to be reversed. Since the School

Tribunal rejected all other contentions of respondent No.1, but

upheld only the contention revolving around Rule 36(2)(b), the

penalty of removal from service imposed upon the first respondent

is liable to be upheld. However, if by virtue of any interim order

passed by any forum, the respondent No.1 has been granted any

monetary benefit, the same shall not be recovered from him. The

appeal is accordingly allowed on the above terms and there shall be

no order as to costs.

……………………………….J. (HEMANT GUPTA)

………………………………..J. (V. RAMASUBRAMANIAN) New Delhi March 29, 2022

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