Shubham Bahuuddeshiya Sanstha vs Dnyaneshwar Govindrao Daigavhane

CIVIL APPEAL No.9161 OF 2017 (ARISING OUT OF SLP (C) No.12747/2017)

Shubham Bahuuddeshiya Sanstha, Waddhamana & Anr. ...Appellant(s)

VERSUS

Shri Dnyaneshwar Govindrao Daigavhane & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed against the final judgment

and order dated 16.03.2017 passed by the High

Court of Judicature at Bombay, Nagpur Bench,

Nagpur in Writ Petition No. 1958 of 2015 whereby

the High Court set aside the judgment and order of

the School Tribunal, Nagpur, cancelled the Signature Not Verified Digitally signed by ASHA SUNDRIYAL termination order of respondent No.1 and permitted Date: 2017.07.17 16:44:46 IST Reason:

him (writ petitioner) to withdraw his writ petition.

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3) In order to appreciate the short controversy

involved in this appeal, the relevant facts need

mention in brief infra.

4) There is a Trust called “Shubham

Bahuuddeshiya Sanstha, Waddhamana,

Nagpur-23”. It is registered under the provisions of

the Bombay Public Trust Act, 1950 (hereinafter

referred to as “the Act”). The Trust is running one

school by and under the name of “Swami

Vivekanand High School" at "Waddhamana" in Tah.

Hingna, District Nagpur, Maharashtra. The affairs

of the school is managed and looked after by the

Managing Committee of the Trust. Respondent No.

1 was working as Assistant Teacher in this school.

5) On 26.06.2003, Respondent No. 1 was served

with charge-sheet as per the procedure prescribed

under Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act (hereinafter

referred to as “MEPS Rules”). The charge-sheet

contained as many as 17 charges levelled against

2 Respondent No. 1 which he is alleged to have

committed in discharge of his duties as Assistant

Teacher. It is not necessary to set out the details of

the charges here except to mention that perusal of

the charges would reveal that most of them were

quite serious in nature.

6) The Managing Committee of the School then

appointed Three-Member Inquiry Committee to hold

an inquiry into the charges levelled against

respondent No.1 as per the provisions of the MEPS

Rules and submit the report. Respondent No.1, felt

aggrieved of this action of the School Management,

filed a civil suit and sought stay of the proceedings

initiated against him. The matter eventually went to

the High Court at the instance of the respondent in

writ petition (W.P. No. 892/2004) wherein the High

Court disposed of the writ petition with the consent

of the parties by order dated 22.11.2005 and

directed the Inquiry Committee to conclude the

3 inquiry within 4 months strictly in accordance with

the provisions of the MEPS Rules.

7) The Inquiry Committee then held an inquiry

wherein respondent No. 1 appeared and

participated through his representative-one Mr.

Keshavarao Dahake. He filed his reply and denied

the charges levelled against him. Both parties, i.e.,

the appellant (School Management) and respondent

No.1, filed documents and examined the witnesses

in support of their case. The Inquiry Committee

held several sittings.

8) The Inquiry Committee on 20.03.2006

submitted the report, which runs into 43 pages

(Annexure-P-3). The Committee (by majority) held

all the 17 charges proved against respondent No. 1.

The School Management concurred with the report

and keeping in view the gravity of the charges which

stood proved, terminated the services of respondent

No.1 by order dated 01.02.2010 (Annexure-P-5 ).

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9) Respondent No. 1, felt aggrieved of his

termination order, filed appeal being Appeal No.

STN10/2010 before the School Tribunal at Nagpur

as provided in the Rules. The School Management

(Employer) on being noticed of the appeal filed reply

and defended the termination order including the

inquiry report. By order dated 30.01.2015

(Annexure-P-6) the School Tribunal dismissed the

appeal and upheld the termination order holding it

legal and proper.

10) Respondent No. 1, felt aggrieved of the order of

the School Tribunal, filed writ petition (W.P.No.

1958 of 2015) out of which this appeal arises before

the High Court.

11) It appears from the record that during the

pendency of the writ petition, the disputes started

inter se Members of the Management Committee of

the Trust resulting in emerging of two rival groups

in the Management of the school.

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12) One group of the Committee, who are

prosecuting this appeal, supported the termination

order of respondent No.1 before the School Tribunal

and the High Court in the writ petition and wanted

the termination to be upheld whereas the other rival

group was opposing the termination order and was

keen to settle the matter with respondent No.1 by

withdrawing his termination order and reinstating

him in service. This rival group of Committee

Members, therefore, filed intervention application in

the writ petition and made a statement that they

have resolved to reinstate respondent No. 1 and are

also ready to cancel his termination. The intervener

also stated that having regard to the fact that

respondent No. 1 was in school since long and

secondly, some charges have also not been proved

against him, particularly the charge in relation to

mass copying, the Management Committee has

resolved to withdraw his termination and reinstate

respondent No.1 in service of the school. It was

6 opposed by other group who was supporting the

termination, i.e., the group which has filed this

appeal.

13) The writ Court accepted the aforementioned

statement of the intervener and on that basis set

aside the order of the Tribunal impugned by

respondent No. 1 in his writ petition and at the

same time also allowed respondent No.1 to

withdraw his writ petition. This is how the writ

Court (single Judge) dealt with the issue in para 8 of

the impugned order.

“8. As referred to above, in the peculiar circumstances, when the management is ready to reinstate the petitioner and to cancel the termination order on the backdrop of the facts that the petitioner is served in the institute for more than 16 years. In addition, the charge leveled against the petitioner of his involvement in mass copy was not supported by any material in the investigation carried out by the investigation agency and the investigation agency sought discharge of the petitioner from the criminal charges leveled against the petitioner. In this situation, the petitioner is permitted to withdraw the petition in view of the resolution passed by the management committee dated 15.1.2017. On the backdrop of the resolution passed by the management dated 15.1.2017, the judgment and order passed by the learned Presiding

7 Officer, School Tribunal is quashed and set aside.”

14) It is this order, which is impugned in this

appeal by one group, who had been defending the

termination of respondent No.1 before the Tribunal

and the High Court and opposing the prayers made

by the intervener in the writ petition which found

acceptance to the writ Court resulting in passing of

the impugned order.

15) It may be mentioned that the effect of the

impugned order is that firstly, the order of Tribunal

dated 30.01.2015 stands set aside; secondly, the

termination order dated 01.02.2010 of respondent

No.1 also stands set aside; and thirdly, respondent

No.1 stands reinstated in services of the School. It is

stated at the bar that respondent No. 1 has since

been reinstated in service and now serving.

16) Heard Ms. Meenakshi Arora, learned senior

counsel for the appellant, Mr. R. Basant, learned

senior counsel for respondent No.1 and Mr. Kishor

Lambat, learned counsel for respondent No.2.

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17) Having heard learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeal in part and while setting

aside the impugned order restore the writ petition

filed by respondent No. 1 to its original file and

request the High Court to decide the writ petition on

merits in accordance with law.

18) In our considered view, the question before the

High Court (writ court) was only one, namely,

whether the order passed by the School Tribunal

dated 30.01.2015, which upheld the Inquiry Report

and, in consequence, the termination of respondent

No.1, is legal or not? It is this question, which the

High Court had to answer on its merits in

accordance with law, one way or the other.

19) The disputes which had surfaced in the

meantime between two rival groups of Management

Committee in regard to managing the affairs of the

School wherein one group was supporting

respondent No.1’s termination and the other group

9 opposing the termination should not have been

taken note of much less relied on by the Writ Court

for disposal of the writ petition nor these facts, in

our view, could be made subject matter of writ

petition filed by respondent No.1-they being wholly

irrelevant for deciding the lis involved in the writ

petition.

20) Had there been unanimity between the

Members of the Managing Committee of the School

resolving to settle the issue with respondent No.1

amicably on terms agreed upon then perhaps,

compromise between respondent No.1 on the one

hand and the Management of School on the other

would have been permissible subject to obtaining of

any sanction from the authorities, if provided under

the Rules for giving effect to it.

21) However, such was not the case. Here, as

mentioned supra, appears to be a case where there

is a split between the Members of the Managing

Committee - one group saying that we should

10 compromise with respondent No.1 and the other

group saying that we should not compromise with

respondent No.1.

22) In such situation, the High Court should not

have accepted the stand of one group and should

have proceeded to decide the writ petition on its

merits regardless of any internal differences

between the Management Committee Members with

a view to find out as to whether the order of the

Tribunal impugned by respondent No.1 (writ

petitioner) is legally sustainable or not?

23) It is for these reasons, we are of the considered

view that we cannot concur with the manner,

reasoning and the conclusion of the High Court,

which on the one hand allowed respondent No.1 to

withdraw his writ petition and on the other hand

proceeded to set aside the order of the School

Tribunal without examining its legality and

correctness on merits and at the same time

proceeded to set aside the termination order also by

11 accepting the statement of one group of

Management.

24) In view of foregoing discussion, the appeal

succeeds and is allowed. Impugned order is set

aside and the writ petition filed by respondent No.1

is revived for being heard on merits in accordance

with law.

25) We, however, consider it apposite to make it

clear that the writ Court would only decide the main

question which is involved in the writ petition as to

whether the order passed by the School Tribunal,

which is impugned by the writ petitioner

(respondent No.1) is legally sustainable or not?

Depending upon the outcome of the writ petition,

consequential orders would be passed. We also

make it clear that the writ Court would consider the

Management (employer) to be the contesting

respondent who would be supporting the order of

the Tribunal and opposing the writ petition. We also

make it clear that the writ Court would not probe

12 into any internal issues arising between these

warring groups of Managing Committee of the

School nor they would be allowed to take

inconsistent stand qua the writ petitioner except the

one mentioned above. We also make it clear that we

have not gone into the merits of the controversy

which is subject-matter of writ petition before the

High Court and hence writ court would decide the

writ petition strictly in accordance with law on

merits uninfluenced by any observations made in

this order.

26) During the pendency of the writ petition,

respondent No. 1 will not be allowed to work (if he is

already reinstated pursuant to the impugned order).

In other words, so long as the termination order

remains and not set aside by the competent Court,

respondent No. 1 would remain out of employment

of the appellant - Trust-School. We also grant

liberty to the Members of Managing Committee (two

rival groups) to settle their internal disputes, if any,

13 in appropriate forum in accordance with law and in

doing so, this order would not, in any manner, come

in their way.

27) We request the writ Court to ensure early

disposal of the writ petition preferably within 6

months as an outer limit.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [R. BANUMATHI] New Delhi;

July 17, 2017

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