Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2835 OF 2019
Modern Mumbai Educational Academy through its Chairman/Executive
Rajendra J. Ghorpade …Petitioner
Smt. Mangal P. Kalbhor (Patil) …Petitioner
Ors.
…Respondents
Mr. S. A. Rajeshirke a/w. Mr. Rahul B. Vijaymane, Advocates, for the Petitioner in Writ Petition No.2835/2019 and for the
Respondent No.1 in CP/296/2018.
Mr. Rajeshwar G. Panchal a/w. Mr. Sarang S. Gundajwar, Mr. Kailas
Jadhav and Mr. V. G. Panchal, Advocates, for the Respondent No.1 in WP/2835/2019 and for the Petitioner in Contempt Petition
No.296/2018.
Ms. Vaishali S. Nimbalkar, AGP
, for the Respondent Nos. 2 and 3.
JUDGMENT
1. Heard Mr. Rajeshirke, learned Counsel appearing for the Petitioner, Mr. Panchal, learned Counsel appearing for the Respondent No.1 and Ms. Nimbalkar, learned AGP appearing for the Respondent Nos. 2 and 3-State.
2. By the present Writ Petition preferred under Article 227 of the Constitution of India, the Petitioner is challenging the legality and validity of the order dated 28th July 2017 passed by the learned Presiding Officer, School Tribunal, Mumbai (“Tribunal”) in Appeal No.16 of 2016. The said Appeal was filed by the present Respondent No.1 challenging order of termination dated 26th May 2016 passed by the Petitioner. By the impugned order, the learned Tribunal set aside the termination order dated 26th May 2016 and remitted the matter to the management for fresh inquiry against the Respondent No.1 on the same charges from the stage of issuing statement of allegations as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Services), Regulation Act, 1977 (“MEPS Act”) & the Maharashtra Employees of Private Schools (Conditions of Services), Rules, 1981 (“the MEPS Rules”). It is further directed that the Respondent No.1 shall be given full opportunity to give reply to the statement of allegations, Chargesheet, examine and cross-examine the witnesses. It is further directed that the reliefs claimed by the Respondent in the Appeal shall be decided after the final outcome of the inquiry. It is further directed that during the course of the inquiry, the Respondent No.1 shall be deemed to be under suspension. The said inquiry was directed to be completed within a period of four weeks.
3. The Petitioner initially filed Writ Petition No. 4292 of 2018 challenging the impugned order. The Respondent No.1 filed the Contempt Petition No. 296 of 2018 on the ground of non-implementation of the impugned order. As there was some technical defect, the said Writ Petition No. 4292 of 2018 was allowed to be withdrawn by order dated 30th January 2019 with liberty to file fresh Writ Petition and accordingly, the Petitioner has filed the present Writ Petition No. 2835 of 2019. This Writ Petition has been admitted on 5th August 2019 and interim relief has been granted staying the execution of the impugned order.
4. Mr. Rajeshirke, learned Counsel appearing for the Petitioner submitted that the impugned order has been passed on the following main grounds: i. Statement of allegations was not issued by the President of the Petitioner - Trust. ii. Charge-sheet was not issued by the President of the Petitioner - Trust. iii. The President was not the member of the Inquiry Committee. Mr. Rajeshirke, learned Counsel submitted that the impugned order has been passed by observing that the above three aspects are in violation of Rule 36(1) as well as Rule 36(2)(b) of the said Rules.
5. At this stage only, it is required to be noted that at the relevant time, the President of the Petitioner – Trust was one Pravin Kalbhor i.e. husband of the Respondent No. 1 whose services were terminated by the Petitioner – Trust by order dated 26th May 2016 and the said order was set aside by the learned Tribunal on the above grounds. The main ground for termination of the service of the Respondent No.1 is that she has fabricated documents to show that her real sister Usha Chavan was working in the Petitioner-Institution w.e.f. 28th January 2012 instead of 18th August 2012.
6. Mr. Rajeshirke, learned Counsel for the Petitioner raised the following contentions:i. The Tribunal has not taken into consideration the factual and legal position. He pointed out Clause Nos. 3, 10, 12, 15, 21 and 25 of the constitution of the trust and submitted that the managing trustees have been entrusted with the powers to manage the affairs of the Trust. He, therefore, submitted that actions taken by the Petitioner - Trust are in accordance with the provisions of law. ii. He very heavily relied on the decision of the Supreme Court in Jai Bhavani Shikshan Prasarak Mandal vs. Ramesh[1]. He submitted that the observations of the Supreme Court regarding doctrine of necessity are squarely applicable to the present case, as the husband of the Respondent No. 1 at the relevant time was the President of the Petitioner – Trust.
iii. He submitted that the Supreme Court has observed that the interpretation of Rule 36(2)(b) as interpreted by the Full Bench of this Court in National Education Society, Nagpur vs. Mahendra s/o Baburao Jamkar[2] may not be the correct interpretation. He submitted that the President is not required to issue Charge-sheet and need not be a member of the Inquiry Committee. iv. Mr. Rajeshirke, learned Counsel pointed out certain factual aspects and submitted that the Respondent No.1 has committed serious misconduct. v. Mr. Rajeshirke, learned Counsel also relied on the following decisions of this Court: a) Chembur Trombay Education Society vs. D.K. Marathe[3] b) Murlidhar S/O. Janrao Kale vs. State of Maharashtra 4
3 2001 SCC OnLine Bom 842:(2002) 3 Bom CR 161 c) Ganesh s/o. Mahadeorao Thawre vs. Central Hindu Military Education Society, Nashik[5] d) Vijay K. Mehta vs. Charu K. Mehta[6] e) Ashok Shikshan Sanstha vs. S. N. Dutonde[7] f) Adarsha Vidyalaya Shikshan Samiti, Manatha, Tq. Hadgaon, Dist. Nanded, through President, Marotrao vs. State of Maharashtra 8 Mr. Rajeshirke, learned Counsel for the Petitioner submitted that in view of the factual and legal position, the impugned order of the learned Tribunal may be quashed and aside and the said Appeal No. 16 of 2016 filed by the Respondent No.1 be dismissed.
7. On the other hand, Mr. Panchal, learned Counsel appearing for the Respondent No.1 raised the following contentions: i. He submitted that the termination order issued by the Petitioner terminating the services of the Respondent No.1 is totally illegal. He submitted that the President of the trust has not issued the Show Cause Notice and therefore, there is violation of Rule 36(1) of the said Rules. ii. He submitted that sub-Rule 2 of Rule 36 of the said Rules contemplates that if the President finds that the explanation submitted by the employee is not satisfactory then only further steps are required to be taken. He submitted that if the President finds that the explanation is not satisfactory, then in that case only, the explanation is required to be placed before the management within 15 days from the date of receipt of the explanation. In that case, the management is under obligation to decide within 15 days whether the inquiry be conducted against the employee. If it decides to conduct the inquiry, then the inquiry shall be conducted by Inquiry Committee constituted as per Clause No.(b) of Sub- Rule 2 of Rule 36 of the said Rules. He submitted that the Inquiry Committee is not constituted as per Rule 36(2)(b) and therefore, in view of violation of the said Rule, entire inquiry is vitiated and therefore, termination order is illegal. iii. He submitted that the impugned order of termination of the services of the Respondent No. 1 is contrary to the mandatory legal provisions. iv. Mr. Panchal, learned Counsel submitted that even if it is assumed that the Trustees could have taken action, however, as there is violation of Sub-Rule 2 of Rule 36, the entire action is vitiated. v. He submitted that the entire controversy is regarding approval of the proposal sent by the Respondent No.1 on behalf of the Petitioner - Trust which has been granted on 30th April 2013. He submitted that the approval granted on 30th April 2013 was cancelled by the Education Department on 16th October 2015. He submitted that thereafter, Education Department itself revoked the said cancellation of approval dated 16th October 2015. He pointed out letter dated 13th September 2017 of the Deputy Director of the Education, Mumbai Division, Mumbai, by which all employees have been directed to be reinstated. He submitted that therefore, as the basis of the termination order itself is no more in existence, no interference under Article 227 of the Constitution of India in the impugned order is warranted. vi. Mr. Panchal, learned Counsel for the Petitioner relied on the following decisions of this Court: a) Gopal Damduji Shelwatkar vs. Gramin Uddhar Society, Kamptee[9] b) Ganpati v. Sant Gulab Baba Shikshan Sanstha,10 c) Kankubai Shravikashram Trust vs. Kamal w/o. Dattatraya Khajukar11 d) Bhagwanrao Vyawhare vs. Sau. Sunita Palve12 e) National Integration and Education Welfare Society vs. The
8. Ms. Nimbalkar, learned AGP supported the impugned order.
9. Before considering the rival submissions, it is necessary to set out certain factual aspects. 9 (2000) 2 Mah LJ 786 10 (2000) 1 Mah LJ 658 11 (1992)1 Mah LJ 216 12 (2008) 1 Mah LJ 417 i. The Respondent No.1 was appointed as an Assistant Teacher on 13th June 1998 in the school run by the Petitioner. ii. The Respondent No.1 was promoted to the post of Headmistress on 1st July 2010. iii. Since 1998, real sister of Respondent No.1 i. e. Usha Chavan was working as Junior Clerk with the Petitioner – Trust. iv. In the year 2012, Pravin Kalbhor, husband of Respondent No.1 was the President/Managing Trustee of the Petitioner - Trust. At that time, said Usha Chavan, real sister of the Respondent No.1, was working as Junior Clerk and the Respondent No.1 herself was working as Headmistress. v. Said Usha Chavan was having B.Com. Qualification and was working as Clerk in the School run by the Petitioner -Trust and had taken leave for acquiring B.Ed. qualification from 4th September 2011 to 30th April 2012. vi. On 28th May 2012, said Usha Chavan acquired B.Ed. qualification. vii. On 23rd July 2012, the School Committee of the Petitioner - Trust passed resolution to publish advertisement for appointment of Shikshan Sevaks after taking permission of the Education Inspectors. viii. Accordingly, an advertisement was published in daily Sakal on 2nd August 2012. ix. On 8th August 2012, the Petitioner - Trust has passed resolution for appointment of said Usha Chavan as Shikshan Sevak along with two other persons namely Prashanth P. Kumbhar and Balu B. Nehe. x. On 28th January 2013, Managing Committee of the Petitioner - Trust by resolution decided to forward a proposal for approval for appointment of said Usha Chavan, Prashanth P. Kumbhar and Balu B. Nehe as Shikshan Sevaks. xi. On 30th April 2013, the Respondent No.1 submitted a proposal for approval and approval was granted by the Education Department for appointment of said Usha Chavan, Prashanth P. Kumbhar and Balu B. Nehe as Shikshan Sevaks. xii. However, it is the contention of the Petitioner that the said approval was obtained by inter alia showing that said Usha Chavan was working as Shikshan Sevak w.e.f. 28th January 2012, when she had not even acquired B. Ed. Qualification which she acquired in May, 2012. In fact, the public advertisement pursuant to which her appointment was made has appeared in ‘Daily Sakal’ on 2nd August 2012. Thus, appointment of Usha Chavan shown as Shikshan Sevak w.e.f. 28th January 2012 is clearly backdated. xiii. July 2015 – Respondent No. 2 – Education Inspector while verification of proposal for confirmation inter alia of appointment of said Usha Chavan detected the fraud in getting approval. xiv. 15th October 2015 – Respondent No. 2 – Education Inspector after conducting enquiry by report dated 15th October 2015 held that on 28th January 2012, Sou. Usha Chavan was having qualification of B. Com only. Said Usha Chavan had taken admission for B. Ed. and completed the same on 27th May 2012 and taken leave from 4th September 2011 up to 30th April 2012 for the said purpose. Thus, appointment dated 28th January 2012 is clearly backdated. Therefore, Respondent No. 2 held Management of the School responsible. When only two posts were available, appointments were given to three teachers. Without eligibility appointment was given with retrospective effect, procedure was not followed and thereby by committing fraud & cheating loss is caused to the Government. xv. 16th October 2015 – Approvals granted on fraudulent basis by order dated 30th April 2013 to Mrs. Usha Chavan and two other teachers were cancelled by Respondent No. 2. xvi. It is the case of the Petitioner – Trust that when Managing Committee came to know about the aforesaid inquiry report and fraud committed by Respondent No. 1 in collusion with her husband Pravin Kalbhor i.e. the Managing Trustee and the President of the Petitioner- Trust and Mrs. Usha Chavan, immediately meeting was called of trustees for passing no confidence motion against Pravin Kalbhor - the then Managing Trustee/President. xvii. 1st November 2015 - Notice of no confidence motion against Pravin Kalbhor, Managing Trustee and the President has been given by the other trustees of the Petitioner – Trust. xviii. 21st November 2015 - Urgent meeting was called for moving no confidence motion against Pravin Kalbhor and Respondent No. 1 – Mangal Kalbhor. xix. 23rd November 2015 - Pravin Kalbhor, the then Managing Trustee and President before meeting of the Trustees of the Petitioner-Trust scheduled to be held on 23rd November 2015 resigned from the post of Managing Trustee/President. xx. 25th November 2015 - Statement of allegation was issued under signature of all 5 trustees (except Respondent NO. 1 & her husband) to Respondent No. 1 in respect of 9 serious charges including preparation of false and fabricated documents and using the same. The relevant portion of said communication dated 25th November 2015 is as follows: “1½ ज्याअर्थी सदर सुनावण मध्ये तुम्ह सादर क े लेल्या मान्यता izLrkokr उपस्थि र्थीत झालेल्या आक्षेपाह मुद्यांचे पष्ट करण देणे ह तुमच मुख्याध्यापक म्हणून जबाबदार होत मा- स्थि*क्षण स्थिनर क्षकांन त्यांचे वर ल अमान्यतेच्या स्थिद- 16@10@2015 च्या i=kr काढलेल्या स्थिनष्कर्षाांचा तुम्ह समाधानकारक खुलासा करु *कत नव्हता म्हणूनच तुम्ह अनुपस्थि र्थीत राहण्याचा मार्ग व कारला हे आपल्या पुढ ल क ृ त वरुन व कार्गदपचे अवलोक ka न क े ले असता स्थिदसून येते- 2½ ज्याअर्थी तुमचे i=k त ल मुद्दा dz-२ मध्ये मान्य क े ल्याiz माणे दि - 8@8@2012 च्या सभा dz- ४३ नुसार दि षय dz-5 अनुसार मंजूर झालेला दि षयाच्या ठरा ाiz माणे तसेच दि -28@1@2013 च्या शाळा सदिमत सभा dz-३९ च्या दि षय dz- ३ नुसार त न दिशक्षक सौ- उषा संजय चव्हाण] Jh- iz’kkar पांडुरंग क ुं भार Jh- बाळू भाऊसाहेब नेहे यांना दिशक्षक प ा र मान्यता घेतल्याचे नमू क े ले आहे- परंतु दि - 8@8@2012 च्या सभेच्या सुचना if=क े मध्ये दि षय dz- ४ ¼ अ ½ अशा dz मांकाने दिशक्षक नेमणूक चा दि षय पश्चात बुद्द ने नंतर घुसडण्यात आलेला आहे] असे दि सून येते- तसेच सदर ठरावामध्ये *ाळे ला कमचार संच मान्यतेiz माणे स्थिकत स्थि*क्षक पदे उपलब्ध होत याच मास्थिहत तुम्ह पुरस्थिवण्यात कसूर क े ल्याचे स्थिदसून येते- 3½ तुम्ह वर ल दोन्ह सभाचा उल्लेख तुमचे खुलासा i=k त क े लेला आहे- मा= दिशक्षण खात्यास iz स्ता सा र करते ेळ त्याiz माणे काय ाह न करता त्याचे दि पदिरत पू लक्ष iz भा ाने तुमचे स् तःचे ैयदि;तक स् ार्थीाने तुमच बदिहण सौ- उषा संजय चव्हाण यांना से ा जंष्ठता दिमळा या उद्देशाने त्यांच शैक्षदिणक पा=ता न पाहता दि -28@1@2012 पासून त्याना नेमणूक आ ेश े ून तसा खोटा बना ट iz स्ता सा र करुन कतव्यात तुम्ह बुद्द पुरस्सर हयगय गैर तणूक क े लेल आहे व माध्यस्थिमक *ाळा संस्थिहतेचे उल्लंघन क े लेले आहे- त्याच व तुस्थि र्थीत खाल ल पस्थिरच्छे द dz- ४ ते ९ मध्ये नमुद क े ल आहे- 4½ सौ- उषा संजय चव्हाण या शाळे मध्ये दिलदिपक या प ा र कायरत असताना दि - 16@08@2011 रोज च्या अजाद्वारे त्यांन ब -एड- करण्यासाठ दि - 4@09@2011 rs 29@02@2012 पयCत रजा मागण क े लेल होत - 5½ त्या रजेच्या अजानुसार आपण दि -22@10@2011 रोज शाळा सदिमत सभा dz-३३ मध्ये दि षय dz- ३ नुसार दिलदिपक सौ- उषा संजय चव्हाण यांना सप्टेंबर २०११ ते फ े czq ार २०१२ अखेर अश्या रजेस मोघम मंजूर दि लेल आहे- 6½ त्या नंतर लगेचच दि - 25@10@2011 रोज सौ- उषा संजय चव्हाण यांन दिलदिपक प ाचा राज नामा तुम्हाला दि लेला आहे त्यांन राज नामा ेण्याच दि ह त कायपध् त अनुसरल नाह म्हणून कोणताह आक्षेप तुम्ह नों दि लेला नाह - 7½ त्यानंतर पुन्हा दि - 24@01@2012 रोज सौ- उषा संजय चव्हाण यांन सं ग ब लून से ा सातत्य से ा संरक्षणासह दिशदिक्षका म्हणून दिनयु;त दिमळणेबाबत तुमच्याकडे अज क े लेला आहे स र अजात दिशक्षक या प ासाठ च शैक्षदिणक अहता izkIr क े ल असल्याने नमू क े लेले आहे- तसा अज तुम्ह Lohdk:u fn- 24@01@2012 jksth rqEgh त्या र स् ाक्षर क े ल आहे- जेव्हा क तुम्ह ब -एड- दिशक्षणासाठ त्यांना दि - 22@10@2011 च्या ‘kkGk lferh lHksr nh?kZ eqnrhph jtk मंजूर क े लेल असता त्यांच ch-,M- शैक्षदिणक अहता पूण >kysyh नाह gs तुम्हाला पूणपणे Kkr होते- तर ेख ल ेख ल तुम्ह त्यांच lgk¸;d f’k{kd Eg.kwu दि - २७@० 1@२०१२ च्या नेमणूक आ ेशाद्वारे दि - 28@01@2012 पासून fu;eckg; नेमणूक क े लेल आहे- त्यामुळे मा- दिशक्षण fu दिरक्षक यांन dk<लेला LkkS- m"kk lat; pOgk.k यांच पा=ता नसताना दिनयु;त ेणे या fu”d”kkZyk rqEgh Lor% स स् व्य;त बाब ार ठरत आहात- 8½ स रच vik= नेe णूक ेताना f’k{k.k [kkR;kl तुम्ह दि - 27@01@2012 ps i= tk- dz-129@2011&12 izek.ks ‘kkGk सदिमत चा ठरा dz- ३ च बना ट iz त सा र क े लेल आहे- ज्याe ध्ये शाळा सदिमत च्या सभेच्या दि नांकाpk उल्लेख नाह तसेच T;k दिशक्षकांच्या नेमणूका ाखदि ल्या आहेत त्यांच्या नेमणूक तारखेचाह उल्लेख क े लेला नाह - तसेच iz त्यक्षात अश कोणत ह शाळा सदिमत च सभा झालेल नसताना खोटा बना ट Bjko तुम्ह सा र क े ल्याने दिसध् होत आहे- 9½ इतक े च नव्हे तर त्यानंतरह सौ- उषा संजय चव्हाण यांन दि - 2@3@2012 रोज लेख अज े ून दितला दि -4@9@2011 ते 30@04@2012 पयCत रजा मंजूर क े ल्याचे नमू करुन त्यांना दि - 1@3@2012 पासून कामा र रुजू करुन घ्या े म्हणून तुम्हाला दि नंत क े ल्याचे दि सून येत आहे- या अदिजत रजा मंजूर dsY;kps uewn d:u R;kauk fn- 1@3@2012 iklwu dkekoj:tw d:u ?;kos Eg.kwu rqEgkyk fouarh dsY;kps fnlwu;sr vkgs-;k vftZr jtk eatwj izdj.kh rqEgh e- [kk- ‘kk- d- ¼lsosP;k ‘krhZZ½ स्थिवस्थिनयमन अस्थिधस्थिनयम १९७७ आस्थिण स्थिनयमावल 1981 मध ल कलम १६ मध ल तरतुद ंचे उल्लंघन क े ल्याचे पष्ट होत आहे- *ाळे च्या iz *ासना संबंध चा i=व्यवहार मुख्याध्यापक या नात्याने म-खा-*ा-क- ¼lsosP;k ‘krhZZ½ स्थिवस्थिनयमन अस्थिधस्थिनयम १९७७ आस्थिण स्थिनयमावल 1981 मध ल कलम ४ ¼2½ ¼d½ अन्वये स्थिनयमास्थिधन राहून करणे आवश्यक असते असे असताना वर ल सव i=व्यवहारांचे अवलोकन क े ले असता तुम्ह जाण वपुवक उल्लंघन क े ल्याचे स्थिदसून येत आहे- अ* कार्गदोi=h व तूस्थि र्थीत दडवून त्याच्या स्थिवपस्थिरत खुलासा तुम्ह स्थिद-18@11@2015 रोज स्थिदलेला आहे- iz त्यक्षात सौ- उषा संजय p व्हाण यांच शैक्षदिणक ik=ता नसतानाह पू लक्ष iz भा ाने तुमचे अदिLकारात नेमणूक े ून गैर तणूक कतव्यात बुद्द पुरस्सर हयगय क े लेल आहे त्यामुळे माध्यदिमक शाळा संदिहता] दिनयम] दि दिनयमाचे उल्लंघन करुन खोटा बना ट iz स्ता तुमच बदिहण सौ- उषा संजय p व्हाण यांचे व्यदि;तगत Qk;n;k कदिरता ाखल क े ल्याचे स्पष्ट झाले आहे- त्यामुळे तुम्ह म-खा-*ा-क- ¼lsosP;k ‘krhZZ½ स्थिवस्थिनयमन अस्थिधस्थिनयम १९७७ आस्थिण fu;ekoyh 1981 e/khy tcj f’k{kk ykn.;kP;k i/nrhP;k dk;Zokghl ik= >kysY;k vkgkr- सबब आपणांस यास्थिवर्षाय काह खुलासा देण्याचा असल्यास वस्थिरल मुद्दयाच्या पुष्ठर्थी सोबत दाखल कार्गदप=ka वरून सदरचे i= तुम्हाला izk प्त झाल्याच्या तारखेपासून ७ स्थिदवसांचे आत लेख सादर करावा अन्यर्थीा आपणास काह सांर्गावयाचे नाह असे र्गृह त धरून वर ल उपस्थि र्थीत मुद्दयावरुन आवश्यक त स्थिनयमास्थिधन कायवाह क े ल जाईल व त्यास तुम्ह च सव व जबाबदार राहाल- याच नोंद घ्याव -” (Emphasis added) English translation of the same is as follows: “1) Whereas, you, in the capacity as Head Master, were responsible to give explanation on the points of objection raised in respect of the proposal for approval submitted by you. From your subsequent acts and on perusing the documents, it comes to the notice that you were not at all able to give satisfactory explanation to the findings drawn by the Educational Inspector in his letter of disapproval dated 16th October 2015 and that therefore, you opted to remain absent during the course of said hearing.
2) Whereas, as agreed and admitted to in Point No.2 of your letter, it has been mentioned therein that approval for appointment of three teachers by names Sau. Usha Sanjay Chavan, Shri Prashant Pandurang Kumbhar and Shri Balu Bhausaheb Nehe to the posts of teachers has been obtained as per the resolution on the Item No.5 on the agenda of the Meeting No. 43 held on the date 8th August 2012 and also as per the resolution on Item No.3 on the agenda of the School Committee’s Meeting No. 39 held on the date 28th January 2013. However, it comes to the notice that the subject of appointment of teachers as mentioned at Item No. 4(A) has been inserted in the Notice for the meeting dated 8th August 2012 as and by way of after thought. Further, from the said resolution, it is seen that you have failed to provide information as to how many number of posts of teachers, as per the set of employees approved for the school, were available.
3) You have made a mention of the aforesaid both meetings in the letter of your explanation. However, while submitting a proposal to the Education Department, you did not take steps as mentioned therein, but on the contrary, with an intention to satisfy your self interest and also with an intention that your sister Sau. Usha Sanjay Chavan gets a seniority, you, without taking into consideration her educational qualification, issued an order of her appointment with retrospective effect from the date 28th January 2012 and submitted a false and bogus proposal to that effect and thus, you have thereby intentionally committed dereliction in duty and misconduct and have violated the provisions of the Code for Secondary School. The facts in respect thereof are mentioned in Paragraph Nos. 4 to 9 mentioned herein below:
4) When Sau. Usha Sanjay Chavan was working on the post of a Clerk in the School, she, under her Application dated 16th August 2011, had sought to grant her leave for the period from the date 4th September 2011 up to the date 29th February 2012, for pursuing the Course in B. Ed..
5) In pursuance of the said leave application, as per the Resolution on Item No.3 on the Agenda of the School Committee Meeting No.33 held on the date 22nd October 2011, you have granted a vague sanction to the leave of Sau. Usha Sanjay Chavan, Clerk, from the month of September, 2011 till the end of February, 2012.
6) Immediately thereafter, on the date 25th October 2011, Sau. Usha Sanjay Chavan has tendered resignation of the post of clerk to you but you did not raise any objection for her not following the prescribed procedure for tendering resignation.
7) Thereafter, again on the date 24th January 2012, Sau. Usha Sanjay Chavan has submitted application to you requesting therein to change the cadre and to appoint her as a teacher along with continuity and protection in service and mentioning therein that she has acquired the educational qualification required for the post of a teacher. You have accepted the said application and affixed your signature thereunder on the date 24th January 2012. As a matter of fact, in the School Committee meeting held on the date 22nd October 2011, when you sanctioned long term leave to her for her pursuing course in B.Ed., you were fully aware that she had not completed the educational qualification of B.Ed. Degree and in spite of that, you, under the Appointment Order dated 27th January 2012, have appointed her as Assistant Teacher with effect from the date 28th January 2012 by disregarding the Rules. Therefore, you yourself become totally responsible for the finding viz. “appointment of Sau. Usha Sanjay Chavan without having qualification”, drawn by the Educational Inspector.
8) While making appointment, despite she being ineligible for the post, you, under the letter bearing outward No. 129/2011-12 dated 27th January 2012, have submitted to the Education Department, the bogus copy of Resolution No. 3 of the School Committee wherein there is no mention about the date of the School Committee meeting and also about the date of appointments of those teachers who have been shown as appointed. Thus, it is proved that you have submitted a false and forged resolution when no such school committee meeting had in fact been held.
9) Not only this, but it is also seen that even thereafter on the date 2nd March 2012, Sau Usha Sanjay Chavan submitted application in writing to you mentioning therein that leave was sanctioned to her from the date 4th April 2012 and further requested therein to get her resumed on duty with effect from the date 1st March 2012. It is seen that by mentioning therein that the aforesaid earned leave has been sanctioned to her, she has requested you to get her resumed on duty with effect from the date 1st March 2012. Therefore, it has become clear that in this matter of sanctioning the aforesaid earned leave, you have violated the provisions of Section 16 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules, 1981 framed thereunder. In the capacity of the Head Master of the School, it is necessary for you to carry out correspondence pertaining to the School administration by following the Rules mentioned in Section 4(2)(C) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules, 1981 framed thereunder. However, although it is so, on perusing the entire correspondence, it is seen that you have intentionally violated the aforesaid Provisions. Thus, you, by suppressing the aforesaid facts mentioned in the documents, submitted explanation contradictory to it, on the date 18th November 2015. As a matter of fact, despite not possessing the educational qualification by Sau. Usha Sanjay Chavan, you, by exercising your powers, appointed her with retrospective effect and thereby committed misconduct and dereliction in duty intentionally and thus, it has become clear that you, by disregarding the provisions of the Code of Secondary Schools, Rules and regulations, have submitted bogus and false proposal for the personal benefit of your sister Sau. Usha Sanjay Chavan. Therefore, you are liable for action of imposing stringent penalty as mentioned in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules, 1981 framed thereunder. Hence, if you want to give any explanation in this regard, you should submit the explanation in writing along with the documents in support of the aforesaid points, within 7 days from the date of receipt of this letter by you or else deeming that you have nothing to say in this regard, necessary action as per Rules shall be taken on the basis of the aforesaid raised points and you shall be solely responsible for the same, which may be noted.” The above charges clearly show that the Respondent No.1 has committed grave misconduct. xxi. 26th November 2015 - In the managing committee meeting held on 26th November 2015, resignation of Pravin Kalbhor (husband of the Respondent No.1) as the Managing Trustee was unanimously accepted by all the 5 trustees. Present managing trustee – Rajendra Ghorpade was elected unanimously as Managing Trustee. xxii. 11th December 2015 - Respondent No. 1 gave reply to aforesaid Show Cause Notice dated 25th November 2015. xxiii. 18th December 2015 - The Managing Committee after finding Reply submitted by Respondent No. 1 unsatisfactory decided to proceed with the Enquiry and considering serious charges decided to keep Respondent under suspension. The communication dated 18th December 2015 is signed by Mr. Rajendra Ghorpade, Managing Trustee and the President of the Petitioner- Trust. The Enquiry Committee constituted was consisting of Mr. Rajendra Ghorpade, Managing Trustee of the Petitioner-Trust, Ramkumar Pande, State Award Winner and Mr. Subhashchandra R. Pal, nominated by the Respondent No.1. Thus, constitution of committee is as per the requirement of Rule 36(2) of the said Rules. xxiv. 18th January 2016 - Charge-sheet was issued and the same was signed by the President of the Petitioner – Trust. xxv. 1st February 2016 to 19th May 2016 - The inquiry proceedings conducted before the Inquiry Committee and after completion of inquiry by majority report it was recommended that Respondent No. 1 be dismissed from service. The Managing Trustee/President was the Chairman of the Equiry Committee. xxvi. 25th May 2016 - Managing Committee after considering report decided to dismiss the Respondent No. 1 from service. xxvii. 26th May 2016 - Respondent No. 1 was dismissed from service by order dated 26th May 2016 issued by the Managing Trustee/President on behalf of the Petitioner- Trust. xxviii. 28th June 2016 - Respondent No. 1 challenged the order of dismissal from service by preferring an Appeal, being Appeal No. 16 of 2016 before the Presiding officer, School Tribunal, North Region, Mumbai. xxix. 28th July 2017 - Learned Presiding officer, School Tribunal, North Region, Mumbai, vide Judgment and order dated 28th July 2017 partly allowed the Appeal NO. 16 of 2016 on the main ground that the statement of allegations as well as the Charge-sheet has not been issued by the President and that the President was also not the convener of the Inquiry Committee and that the same is completely violative of Rule 36(1) and 36(2)(b) of the MEPS Rules, 1981. The School Tribunal remitted the matter to the management for fresh inquiry against the Respondent No. 1 from the state of issuing statement of allegations as per the provisions of the MEPS Rules on the same charges. xxx. 14th August 2017- Writ Petition No. 8818 of 2017 along with many connected Writ Petitions have been filed in the High Court, as many Shikshan Sevaks have been removed from service. Learned AGP made a statement of withdrawal of action and the same is recorded in the order dated 14th August 2017. xxxi. 13th September 2017 - The Education Department itself revoked the order dated 16th October 2015 and again granted approvals, as per the proposal sent by the Respondent No. 1. xxxii. 5th August 2018 -The present Writ Petition is admitted and the interim relief has been granted.
10. For ready reference, operative part of the impugned order dated 28th July 2017 is reproduced herein below:- “O R D E R The appeal is partly allowed in the following terms.
1. The impugned termination order dated 26.05.2016 stands set aside.
2. The matter is remitted to the Management for fresh enquiry against the appellant from the stage of issuing statement of allegations as per the provisions of the Rules 1981 on the same charges. The appellant be given full opportunity to give reply to the statement of allegations, charge-sheet, examine and cross-examine the witnesses.
3. The reliefs claimed by the appellant in this appeal will be decided after the final outcome of the enquiry.
4. During the course of enquiry the appellant shall be deemed to be under suspension.
5. The appellant is at liberty to challenge the decision of the management after conclusion of Inquiry Committee.
6. The respondent management shall complete enquiry within four months from the date of receipt of this order.
7. The appellant is directed to cooperate the Inquiry Committee.
8. The appeal is finally disposed of.
9. No order as to costs.”
11. As already noted herein above, learned Tribunal quashed the impugned order of dismissal from the service of the Respondent No. 1 mainly on two grounds. Firstly, the letter of allegations dated 25th November 2015 as also the Charge-sheet was not signed/issued by the President/Managing Trustee of the Trust as required by the Rule 36(1) of the MEPS Rules and secondly, the President was not the convener of Inquiry Committee which violated Rule 36(2)(b) of MEPS Rules.
12. Before considering the rival contentions, it is necessary to set out Rule 36 of the said Rules, which reads as under:
13. Mr. Panchal, learned Counsel appearing for the Respondent No.1 in view of specific provisions made in Rule 36 of the MEPS Rules contended that as the inquiry is conducted of the Respondent No.1 who was the Headmistress, it is the President of the Management who is only entitled to communicate to the Respondent No.1 the allegations against the Respondent No.1 and demand from her a written explanation within 7 days. He further submitted that if the President finds that explanation submitted by the Respondent No.1 is not satisfactory then, he shall place it before the Management within 15 days and thereafter, the Management shall take decision to conduct an inquiry against the Respondent No.1. He, therefore, submitted that on 25th November 2015, statement of allegations was addressed to the Respondent No.1 and the same was signed by all the trustees except, the President. He submitted that therefore, the initiation of the action itself suffers from grave illegality and therefore, the Petitioner is not entitled for any relief. To substantiate his contention, he relied on the following decisions: i. Gopal Damduji Shelwatkar (supra) (Paragraph Nos.13 & 16) ii. Ganpati, (supra)(Paragraph Nos.[7] & 8) iii. Kankubai Shravikashram Trust (supra)(Paragraph Nos.[9] &10) iv. Bhagwanrao Vyawhare (supra) (Paragraph No.3) v. National Integration and Education Welfare Society (supra) (Paragraph Nos.14, 16, 19 & 20)
14. In Gopal Damduji Shelwatkar (supra), a learned Single Judge has relied on the decision of Division Bench in the case of Kankubai Shravikashram Trust (supra), wherein it has been held that in Sub-Rule 1 of Rule 36 with respect to "Head" who is also a Chief Executive Officer, it will be the President of the institution who is competent to communicate the statement of allegations and demand the explanation. In paragraph No.9 of the Division Bench’s decision, it has been held that the President of the institution alone will be competent to issue to the "Head" the statement of allegations and none else.
15. In Ganpati (supra), reliance is also placed on Kankubai Shravikashram Trust (supra). The relevant discussion in Ganpati (supra) is in paragraph Nos. 7 and 8 which read as under:-
16. The relevant discussion in Kankubai Shravikashram Trust (supra) is in paragraph Nos. 9 and 10 which reads as under:-
10. The sub-rule deals with the procedure, which the management must follow in the event it is found that the employee is guilty of misconduct or misbehaviour of a serious nature and the management decides to hold an enquiry. In such a case the management can take steps, but through a properly constituted enquiry committee with a further rider that they could do so only in cases where major penalty can be inflicted. To begin with, it is necessary to communicate the statement of allegations to the delinquent and demand a written explanation thereto within a stipulated time. For this purpose sub-rule (1) of Rule 36 makes a distinction between an “employee” of the institution and the “Head” of that institution. The “employee” is defined under clause. (7) of section 2 of the Act and it means a member of teaching and non-teaching staff of a recognised school. The “Head” as defined under clause (9) of section 2 means the person by whatever name called in charge of academic and administrative duties and functions of a school conducted by the management and recognised or deemed to be recognised under the Act and includes a Principal, Vice-Principal, Head Master, Headmistress, Assistant Head Master, Assistant Headmistress or Superintendent of the school. The two categories are separated only with a view that either of them are judged by persons appointed in Enquiry Committee, and each of the two members appointed by the management is superior to them. In so far as an “employee” is concerned, the Chief Executive Officer, duly authorised by the management, can communicate the statement of allegations and demand his or her explanation. But in case of a “Head” who is also a Chief Executive Officer, it will be the President of the institution who is competent to communicate the statement of allegations and demand the explanation.
17. It is clear that the provisions are made in Rule 36 with a view that no person inferior in rank should judge the mistake. In that view of the matter, it has been held that the President of the institution alone will be competent to issue to the "Head" the statement of allegations and none else. It has been held that “Head” of the institution who is a headmaster or a Headmistress enjoys the privileged position and is covered within the definition of Chief Executive Officer. It has been held that Headmistress is not only a “Head” as defined under Clause (9) of Rule 2 of the MEPS Act, but is also a Chief Executive Officer within the meaning of Clause (c) of Rule 2 of the MEPS Rules.
18. Mr. Panchal, learned Counsel appearing for the Respondent No.1 and Mr. Rajeshirke, learned Counsel appearing for the Petitioner both have relied on Full Bench decision of this Court in the case of National Education Society, Nagpur (supra). The questions which the Full Bench was considering are set out in paragraph No. 2 and the relevant discussion of the Full Bench is in paragraph Nos. 20 and 24. The relevant part of paragraph Nos. 2, 20 and 24 are reproduced herein below: “2. The questions which arise for our consideration and which are required to be answered by this Full Bench are framed as under: (i) “Whether the Head Master of a school by virtue of his position as such becomes the Chief Executive Officer, as defined in Rule 2(c) of the M.E.P.S. Rules, 1981 as held in the case of Kankubai Shravikashram Trust v. Kamal w/o Dattatraya Khajurkar, reported in 1992 Mh. L.J. 216, or whether “Such Headmaster would be the Chief Executive Officer only if he is empowered to execute the decisions of the management, as held in the case of Shri Govind Bal Mandir Shikshan Sanstha v. Suhas Dattatraya Kogekar, reported in 1988 (II) C.L.R. 1.” (ii) “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.” “20. ….. Apart from the above, from the hierarchy that is noticed by us hereinbefore, the Head of a School is subordinate to the Chief Executive Officer and as a correspondent if the Head Master were to become Chief Executive Officer automatically, the intention of the rule making authority to allow the management to have the Chief Executive Officer of its choice other than the Head, Secretary or Trustee would be clearly defeated. Further, when there are more than one trustee in a trust, each would claim to be the Chief Executive Officer creating a chaotic situation. When the management runs more than one school or junior college there would be more than one Head Master and in that case the Head Masters of all the schools would claim to be the Chief Executive Officers.
24. Perusal of Rule 36(1)(2)(b), in the light of the above discussion, shows that the Chief Executive Officer shall communicate the statement of allegations to an employee. If the statements of allegations are required to be issued to the Head, who is also empowered to act as Chief Executive Officer, the same will have to be issued by the President of the management. Further, looking to the hierarchy as seen above, if the statement of allegations are required to be issued to the Head (who is not empowered to act as Chief Executive Officer by the management), then such statement of allegations can be issued by the Chief Executive Officer and it is not necessary that the President should issue the same.”
19. Mr. Panchal, learned Counsel appearing for the Respondent No.1 relied on the Full Bench decision and submitted that even the said judgment also supports his contention that in this particular case, notice contemplated under sub-Rule 1 of Rule 36 should have been issued by the President. He submitted that admittedly, the President has not issued the notice and therefore, entire action is illegal, null and void.
20. On the other hand, it is the contention of Mr. Rajeshirke, learned Counsel appearing for the Petitioner that even as per the decision of the Full Bench also it is the Chief Executive Officer who shall communicate the statement of allegations to the employee including Headmistress. He submitted that if the Headmistress is also empowered to act as a Chief Executive Officer then only it is the President of the Management who issues the notice. He submitted that there is nothing to indicate that the Respondent NO. 1 was acting as the Chief Executive Officer.
21. Mr. Rajeshirke, learned Counsel appearing for the Petitioner submitted that the Supreme Court in the case of Jai Bhavani Shikshan Prasarak Mandal (supra) has doubted the correctness of the Full Bench Judgment on the said aspect wherein it is held that if the statements of allegations are required to be issued to the Head, who is also empowered to act as Chief Executive Officer, the same will have to be issued by the President of the management. The relevant discussion is in paragraph No. 25 of the Supreme Court decision, which reads as under:- “25. As could be seen from the portion of the Judgment extracted above, the full Bench was unduly carried away by the fact that the 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.”
22. There is substance in the contention raised by Mr. Rajeshirke, learned Counsel for the Petitioner that there is nothing to indicate that the Respondent No.1 was working as the Chief Executive Officer. He is also right in contending that the Supreme Court in Jai Bhavani Shikshan Prasarak Mandal (supra) has raised doubt about the Full Bench decision of this Court in National Education Society (supra)
23. However, assuming that Mr. Panchal, learned Counsel appearing for the Respondent No.1 is right in contending that as far as the Headmistress is concerned, it is the President who should have given notice, as contemplated in sub-Rule 1 of Rule 36 of the MEPS Rules, in this particular case, it is required to be seen that there were 7 founder-trustees which includes Pravin Kalbhor, (husband of the Respondent No. 1) and Respondent No. 1 herself. As per the case of the Petitioner, said Pravin Kalbhor, founder trustee and the President at the relevant time along with the Respondent No. 1 – Headmistress as well as one of the trustees submitted proposal and got approval as Shikshan Sevak of said Usha Chavan, sister of the Respondent No. 1 by showing back dated appointment w.e.f. 28th January 2012 when said Usha Chavan was not even eligible for appointment and when she was working on the post of Clerk and already taken salary of the post of Clerk upto May, 2012.
24. It is also required to be noted that inter alia notice of no confidence dated 1st November 2015 has been issued against said Pravin Kalbhor and when meeting was to be held for consideration of said no confidence motion, Pravin Kalbhor resigned from the post of the Managing trustee on 23rd November 2015 and his resignation has been accepted in the meeting held on 26th November 2015.
25. In the above background, it is significant to note that by letter dated 25th November 2015, statement of allegations was served on the Respondent No.1 which was signed by 5 trustees out of 7 trustees except the Respondent No.1 i.e. Headmistress and her husband said Pravin Kalbhor, who at the relevant time may not be considered as the President of the Petitioner-Trust, as admittedly, said Pravin Kalbhor resigned as Managing Trustee on 23rd November 2015 and on 26th November 2015 his resignation was unanimously accepted by other 5 trustees and Rajendra Ghorpade, trustee was elected unanimously as Managing Trustee. It is true that sub-Rule 1 of Rule 36 contemplates that if Headmistress is also Chief Executive Officer then the President alone has power to issue the notice as contemplated under sub-Rule 1 of Rule 36 of the said Rules. However, there is nothing on record to show that the Respondent No.1 was also the Chief Executive Officer.
26. In any case, what is important to note that in this case, the then President, Pravin Kalbhor is the husband of the Respondent No.1 i.e. Headmistress. It is one of the fundamental principles of jurisprudence that no man can be a judge in his own cause and if there is reasonable likelihood of bias, it is in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting. The Supreme Court in the case of Ashok Kumar Yadav vs. State of Haryana14 has held that the basic principle underlying this Rule is that justice must not only be done but must also appear to be done. What is important to note is that in Ashok Kumar Yadav (supra), the Supreme Court has further held that this Rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. The relevant discussion is in paragraph 16 of the said decision of Ashok Kumar Yadav (supra), which reads as under:
27. In the present case, assuming that the sub-Rule 1 of Rule 36 of the MEPS Rules provides that it is the President who has to communicate to the Respondent No.1 statement of allegations and sought explanation and thereafter, as per the sub-Rule 2 of Rule 36, if it is found by the President that explanation submitted by the “Head” is not satisfactory, then he shall place it before the Management within 15 days from the date of receipt of the explanation and thereafter, the Management in turn decide within 15 days whether inquiry be conducted against the employee. Thereafter, constitution of the Inquiry Committee is set out in sub-Rule 2 of the said Rules. Even assuming that there is substance in the contention raised by Mr. Panchal, learned Counsel appearing for the Respondent No.1 that it is the President alone who is empowered to issue a statement of allegations as per sub-Rule 1 of Rule 36 to the Respondent No. 1 and it is the President alone who takes decision whether the explanation offered by the Respondent No.1 - Headmistress is acceptable or not, in this particular case, the President could not have acted in terms of power under sub-Rule 1 and sub-Rule 2 of Rule 36 of the said Rules as the President or Managing Trustee at that time was Pravin Kalbhor i.e. husband of the Respondent No. 1 against whom action has been taken. The Supreme Court has very elaborately explained the said fundamental principle of justice that no man can be a judge in his own cause, as set out herein above. Thus, in the peculiar facts and circumstances of this case, the action taken by other trustees of issuing a statement of allegations cannot be faulted.
28. It is the submission of Mr. Panchal, learned Counsel for the Petitioner that all the trustees of the Petitioner – Trust are relatives. However, the then Managing Trustee – Pravin Kalbhor and the Respondent No. 1 are husband and wife. Apart from that, the Respondent No.1 shown the back dated appointment of Usha Jadhav i.e. her real sister. The allegation is that the said Pravin Kalbhor and the Respondent No. 1 fraudulently shown appointment of Usha Jadhav backdated when she was not having even the basic qualification for the post of Shikshan Sevak and during that period, she was working as Clerk in the School conducted by the Petitioner – Trust and therefore, by no stretch of imagination, said Pravin Kalbhor could have been part of the decision making process.
29. It is also required to be noted that as contended by Mr. Rajeshirke, learned Counsel appearing for the Petitioner that the doctrine of necessity is applicable to the present case. Mr. Rajeshirke, learned Counsel for the Petitioner relied on the Judgment in the case of Jai Bhavani Shikshan Prasarak Mandal (supra) and more particularly, on paragraph Nos. 26 and 27 which read as under:-
30. The Supreme Court in Election Commission of India vs. Dr. in paragraph No.16 observed as follows:
31. The Supreme Court in the case of Lalit Kumar Modi vs. Board of Control for Cricket in India16 held as follows:
32. The Supreme Court in the case of State of UP vs. Sheo held as follows:
33. Thus, the doctrine of necessity allows deviation from the strict compliance of law in circumstances where it is impossible to have complete adherence to the provisions of law. The doctrine of necessity applies to tide over the situations where it is impossible to comply with legal provision. It is based on the idea that laws are created for the public good and that in some circumstances, strict adherence to the law may be harmful to the public interest.
34. Thus, even if it is assumed that action against the Respondent No.1 should have been initiated by Pravin Kalbhor, President of the Trust, in accordance with Rule 36 of the said Rules, then also the action taken against Respondent No.1, pursuant to show cause notice issued by five trustees out of seven trustees (excluding two trustees i.e. Respondent No.1 and her husband-Pravin Kalbhor, the then President/Managing Trustee) is justified on the touchstone of the doctrine of necessity. In the facts and circumstances of this case, the doctrine of necessity is squarely applicable.
35. The Supreme Court in T.N. Seshan, Chief Election Commr. of India v. Union of India18 in paragraph No.22 has inter alia relied on Footnote 6 at p. 657 of Halsbury's Laws of England, 4th Ed. (Reissue), Vol. 7(1) posits: “The principle has long been established that the will of a Corporation or body can only be expressed by the whole or a majority of its principles, and the act of a majority is regarded as the act of the whole. (See Shakelton on the Law and Practice of Meetings, 8th Ed., Compilation of AG, p. 116)”
36. On the touchstone of the above principle also the action taken against the Respondent No.1 by the Petitioner-Trust can be held to be justified and legal. In this case, action was taken against Respondent No.1, pursuant to show cause notice issued by five trustees out of seven trustees (excluding two trustees i.e. Respondent No.1 and her husband-Pravin Kalbhor, the then President/Managing Trustee). Thus, the action is assumed to be taken by the entire body i.e. Trust which includes even the President of the Trust. Thus, in that sense even the requirement of Rule 36 is deemed to have been fulfilled.
37. In this particular case, if the submission of Mr. Panchal, learned Counsel appearing for the Respondent No.1 is accepted then no action can be taken against the Respondent No.1 inspite of serious and grave misconduct as said Pravin Kalbhor (husband of Respondent No.1), the President and the Managing Trustee of the 19 126 ER 875, 879 & 882: 1 Bos & Pul 229 Petitioner-Trust will not take any action against the Respondent No.1.
38. Mr. Panchal, learned Counsel appearing for the Respondent No.1 has heavily relied on paragraph 16 of the decision in National Integration and Education Welfare Society (supra). The said paragraph 16 reads as under:-
39. It is the submission of Mr. Panchal, learned Counsel appearing for the Respondent No.1 that thus, the satisfaction is required to be recorded by the President at two stages that upon receipt of the reply of the “Headmistress”, if President finds that the explanation submitted by the “Head” is not satisfactory, then President to place it before the Management. He submitted that in any case, the President finds that explanation is satisfactory then further requirement as contemplated under Rule 36 of the said Rules come into picture and the matter was then stand dropped. He submitted that only after President forms an opinion that there is prima facie case then only it has to be placed before the Management. He submitted that as all trustees have signed the statement of allegations, the principles of natural justice are violated as the President has been deprived of forming an opinion and thereafter, the entire Management’s decision to hold an inquiry is not in accordance with the provisions of law. He submitted that as the statement of allegations has been signed by all the trustees, except the President, this is a case where the entire management by majority has already taken decision and therefore, the satisfaction of second stage as contemplated by sub-Rule 2 of Rule 36 by the Management has become a formality. However, as noted herein above, Pravin Kalbhor, the Managing Trustee and the President is husband of the present Respondent No.1 – Headmistress. Thus, in view of the law laid down by the Supreme Court in the case of Ashok Kumar Yadav (supra) holding that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is “in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting”. The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done. The power of the President under sub-Rule 1 read with sub-Rule 2 of Rule 36 of the MEPS Rules to decide whether the explanation submitted by Respondent No.1 is satisfactory or not and thereafter, place the matter before the Management cannot be exercised in the facts and circumstances by said Pravin Kalbhor, the then President (husband of Respondent No.1) and he is incapacitated from taking decision. Although, Mr. Panchal, learned Counsel appearing for the Respondent No.1 may be technically right in contending that the procedure followed is not in terms of Rule 36 of the said Rules, however, in the peculiar facts and circumstances of this case, as at the relevant time said Pravin Kalbhor (husband of the Respondent No.1) was the Managing Trustee and the President, he could not have acted in this case.
40. Mr. Panchal, learned Counsel appearing for the Respondent No.1 has very heavily relied on paragraph Nos.17 and 18 of the impugned Judgment of the Tribunal. The said paragraph Nos. 17 and 18 read as under: “17. The learned advocate on behalf of appellant also reliance on the decision of our Hon’ble High Court (Nagpur Bench) in the case of Ganpati son of Kondbali Sant Vs. Shri Sant Gulab Baba Shikshan Sanstha & Ors. 2000 (1) Mh.L.J. 658 wherein it is observed that: the Head Master of the school is terminated after holding enquiry. Under rule 36(1) it is necessary that a President of the Management should issue statement of allegation to H.M. and also in the constitution of Inquiry Committee, President is required to be appointed as one of the member of the Inquiry Committee. Delinquent being Head of the school, President of the Institution alone is legally entitled to issue statement of allegation to the delinquent. President has to be the member of Inquiry Committee under rule 36(2)(b). As there was failure in observance of these rules, the action of Management in terminating services of Head Master was therefore violative of rule 36(1) and 36(2)(b) of Rules 1981. The termination order was quashed and set aside.
18. I have gone through the above cited supra case laws minutely. Admittedly the appellant/deliquent was Head of the school at the time when the enquiry against her was initiated by the respondent management. The facts and circumstances before me and observations laid down by Hon’ble High Court in supra cases of Gopal Damduji Shelwatkar and Ganpati Kondbaji Sant are identifical and as per the observations of Hon’ble High Court in these cases the rule 36(1) and 36(2)(b) are mandatory provisions. In this present case statement of allegations and charge-sheet issued not issued by the President and also President is not the convener of the Inquiry Committee. Hence, it is completely violative of rule 36(1) and 36(2)(b). Hence, the termination of the appellant in pursuant to such enquiry is illegal and it is liable to be set aside…. ”
41. Mr. Panchal, learned Counsel appearing for the Respondent No.1 has also relied on Clause Nos. 8 and 10 of the byelaws of the trust. Said Clause Nos. 8 and 10 are as follows: “8- uohu fo’oLrkaph dk;Z dj.;kl ekU;rk%& oj mYysf[kysY;k izek.ks ok U;kl i=k[kkyh izFke iklwu use.;kr vkysyk vkgs gs vls letwu R;kl fo’oLrkaP;k loZ tckcnk&;k gDd o vf/kdkj izkIr gksrhy- ek= rks i;ZaUr vlk fo’oLr o U;klkP;k uksan ofgr rks;k U;klkpk fo’oLr Eg.kwu dke dj.;kl r;kj vkgs o R;kl fo’oLr inkps tckcnkjh ekU; vkgs vlk ys[k fygwu R;koj lgh d:u R;kaph R;kaP;k fo’oLr inkP;k use.kwdhl ekU;rk tkghj dj.;kr;sr ukgh- rks i;ZaUr R;kl fo’oLr inkps vf/kdkj o gDd tckcnk&;k izkIr gks.kkj ukghro rks i;ZaUr rks;k U;klkP;k fo’oLr Eg.kwu dke d: ‘kd.kkj ukgh- 10- dk;Zdkjh &fo’oLr %& fo’oLr eaMGkrhy dk;Zdkjh fo’oLr Eg.kwu U;klkfuekZrs jkgrhy tj R;k dk;Zdkjh fo’oLrkus eqnr iwoZ jkthukek fnY;kl vFkok vU; brj dkgh dkj.kkus rh tkxk fjdkeh >kY;kl jkfgysys fo’oLr;kaps tkxh dk;Zdkjh fo’oLrkaph fuoM djrhy o R;kaP;k tkxh uohu;s.kkjk fo’oLr dk;Zdkjh fo’oDr Eg.kwu iq<s dke ikghy brj fo’oLrkaps laerhus dk;Zdkjh fo’oLr U;klkps nIrj lkaHkkG.ks] i=O;ogkj ikgk.ks] o fo’oLr eaMGkus ?ksrysY;k fu.kZ;kps fo’oLr eaMGkP;k lqpusuqlkj vaeykr vk.k.ks-” English translation of the above is as under:- “8. Approval of the New Trustees to act as Trustee:- As mentioned hereinabove or by deeming that the said person has been appointed under the Trust Deed since the beginning itself, he shall get all the rights, powers and the responsibilities of the Trustees. However, unless and until such a Trustee executes a declaration in writing in the Register of the Trust that he is ready to act as a Trustee of this Trust and that he accepts the responsibility of the said post of the trustee and affixes his signature thereto and until the approval is granted to his appointment as a Trustee, he shall not get the rights, powers and responsibilities of the post of trustee and he cannot act as a trustee of this Trust.
10. Executive Trustee:- The Founder of the Trust shall be the Executive Trustee in the Board of Trustees. However, if the said Executive Trustee resigns prematurely or if the post becomes vacant for any other reason, then the remaining Trustees shall elect an Executive Trustee in his place and the new Trustee to be appointed in his place, shall continue to work as Executive Trustee. The Executive Trustee, with the consent of other Trustees, shall look after the works such as maintaining the records of the Trust, carrying out the correspondence and implementing the decisions taken by the Board of Trustees, as per instructions of the Board of Trustees.” On the basis of these clauses, it is the submission of Mr. Panchal, learned Counsel appearing for the Respondent No.1 that in this case, Pravin Kalbhor, the then Managing Trustee resigned from the post on 23rd November 2015 and on 26th November 2015, the resignation given by him was unanimously accepted by all 5 trustees and Rajendra Ghorpade has been elected unanimously as present Managing Trustee. He also relied on the decision in case of Nava Yuwak Education Society, Nagpur vs. The Education Officer (Secondary), Zilla Parishad, Fulchurpeth, Gondia20 He relied on paragraph No. 10 of the said decision. It is the contention of Mr.
20 Writ Petition No.2246 of 2020 Dtd: 29 November 2021@ Nagpur Bench Panchal, learned Counsel appearing for the Respondent No.1 that as the change report with respect to the resignation of said Pravin Kalbhor as President of the trust and election of Rajendra Ghorpade as Managing Trustee and as President is still pending, the President and the trustees have no authority to take major policy decisions. He relied on paragraph No. 10 of the said decision, which reads as under: “10. In the said case of Adarsh Vidyalaya Shikshan Samiti v. State of Maharashtra and others (supra), what the Coordinate Division Bench of this Court has held is that merely because the Change Report is pending, it cannot be said that the old body continues and is permitted to function, rather during such pendency of the Change Report, the newly elected representatives could not be prohibited from functioning and this would only mean that the Division Bench, by holding so, has ensured that no crisis occurs in the management of day-to-day affairs and the basic functions of the society or the trust are discharged in accordance with law so that the society or the trust does not come to a sudden halt. This view is, therefore, only in the interest of smooth running of the affairs of the society or the trust with a view to ensure that the society or the trust does not cease to exist. But, this is the reason why the Division Bench has only said that the newly elected representatives can function and nothing more. The Division Bench has not said anything about taking of major policy decisions by the newly elected representatives pending the Change Report and has not granted any permission to the newly elected representatives to effect any permanent change to the administration of the society or the trust. Suspension of a Headmaster like the petitioner is a major policy decision, which is not expressly permitted to be taken by the said decision in Adarsh Vidyalaya Shikshan Samiti v. State of Maharashtra and others (supra). This is also in consonance with the settled position of law.”
42. However, it is to be seen that said paragraph No. 10 makes it clear that the same applied to change report regarding the appointment of new elected representatives i.e. new body. In fact, in the present case, the trustees continue to be trustees of the trust. Only one trustee namely Pravin Kalbhor who was also Managing Trustee at the relevant time resigned on 23rd November 2015 and his resignation was accepted on 26th November 2015 and in view of his resignation, Rajendra Ghorpade has been elected as Managing Trustee thereby President of the trust. Thus, the said observations of the Division Bench in paragraph No. 10 of Adarsh Vidyalaya Shikshan Samiti (supra) are not applicable to the facts of the present case. On this issue, Mr. Rajeshirke, learned Counsel appearing for the Petitioner has relied on the decision in the case of Chembur Trombay Education Society (supra). The relevant discussion is in paragraph No. 11, which reads as under: “11. Giving the natural meaning to this word in section 22 of the Act, coupled with the principle enunciated by the Apex Court that when the Act does not require that registration of any change is a condition precedent to come into effect, I have no hesitation in taking the view that the amendment to the constitution as well as subsequent elections of the President and members of the Governing Council, therefore, came into effect from the date of the respective resolutions of the general body. The enquiry postulated under section 22 is only to ascertain the factum as to whether the change has occurred or not. In the event, the competent authority is satisfied that the change has not occurred in accordance with law, only then that change will have to be undone and status quo ante will have to be restored. A fortiori, resolution of the general body of the Society is sufficient to ignite the change of amendment in the constitution as well as of electing new general body for administering the affairs of the Society. The fact that the change report is pending consideration before the Charity Commissioner, would be of no avail. Understood thus, as a necessary corollary, it will have to be held that the respondent-Shri Marathe ceased to be the President of the Society from the date when the General Body elected another President in its meeting dated June 18, 1995. If this be the position, the respondent-Shri Marathe will have no right whatsoever to continue in the post of president and, there would be no question of granting any mandatory relief at this stage.”
43. It is required to be noted that the change report regarding resignation of said Managing Trustee - Pravin Kalbhor submitted on 23rd November 2015 and change report regarding acceptance of resignation and election of Rajendra Ghorpade as Managing Trustee and President which resolution has been passed on 26th November 2015 and change report was filed on 24th April 2017 and the same is still pending. In view of the law laid down in the case of Chembur Trombay Education Society (supra), the said changes have come into effect immediately.
44. This is a case, where the factual position on record shows that at the relevant time, the Respondent No.1 was acting as Headmistress. One Usha Chavan i. e. real sister of Respondent No.1 was working as Junior Clerk with the Petitioner since 1998 to
2012. During the period of 2011 to 2012, Usha Chavan was having only B. Com. qualification and she has taken leave for acquiring B.Ed. qualification from 4th April 2012. She acquired B. Ed. qualification on 28th May 2012. On 23rd July 2012, the School Committee of the Petitioner passed resolution to publish advertisement. On 2nd August 2012, advertisement was published in daily newspaper ‘Dainik Sakal’. On 7th August 2012, selection process for recruitment was carried out. On 8th August 2012, the Petitioner passed resolution for appointing said Usha Chavan as Shikshan Sevak. On 28th January 2013, the Managing Committee decided to forward a proposal for approval as Shikshan Sevak of said Usha Chavan and others. It is significant to note that the Respondent No. 1 – Headmistress and Pravin Kalbhor, the managing trustee and the President of the Petitioner – Trust sent proposal for approval by showing appointment of said Usha Chavan w.e.f. 28th January 2012 when she was not having the basic qualification. For the first time, said Usha Chavan acquired B.Ed. qualification on 28th May 2012 therefore, it is very clear that on 28th January 2012, said Usha Chavan was not having even basic qualification to be appointed as Shikshan Sevak. In any case, it is also required to be noted that for the first time, advertisement was published on 2nd August 2012 pursuant to which said Usha Chavan was appointed and therefore, by no stretch of imagination, she could have been appointed w.e.f. 28th January 2012. In July 2015, the Respondent No.2 - Education Officer while verification of proposal for confirmation of appointment of Usha Chavan and others in regular pay scale discovered the said fraud in getting approval. Thus, in the facts and circumstances of this case, the learned School Tribunal should not have interfered with the termination order of Respondent No.1 dated 26th May 2016.
45. Thus, in the facts and circumstances of this case and in view of the legal position, the Writ Petition deserves to be allowed by setting aside the order 28th July 2017 passed by the learned Presiding Officer, School Tribunal, Mumbai in Appeal No.16 of
2016. Accordingly, the order 28th July 2017 passed by the learned Presiding Officer, School Tribunal, Mumbai in Appeal No.16 of 2016 is dismissed with costs.
46. As far as the Contempt Petition is concerned, the same is filed by Respondent No.1 as the impugned order of the learned Tribunal is not complied with. However, it is to be noted that subsequently, in this Writ Petition, a learned Single Judge by order dated 5th August 2019 has stayed the order of the learned Tribunal. By this order, the learned Tribunal’s order is set aside. Therefore, nothing survives for consideration in the Contempt Petition and the same stands disposed of accordingly. [MADHAV J. JAMDAR, J.]