Ashunta Vivek Prabhu @ Monteiro v. Municipal Corporation of Greater Mumbai

4. Mr. Kothari, learned Advocate appearing for the School (the Trust and the Primary School) would submit that the provisions of Rule 20 of the Grant-in-Aid code contemplate Appeal to the Municipal Commissioner and the impugned order dated 12.11.2020 has been passed by the Assistant Municipal Commissioner and hence is without jurisdiction. He would submit that powers of the Municipal Commissioner in such cases is a quasi-judicial function and cannot be delegated to any subordinate Authority. Next he would submit that 5 of 21 the proceedings conducted before the Appellate Authority are in gross violation of the principles of natural justice in as much as though the School was heard by virtual mode by the said Authority, the said hearing was inadequate and a further opportunity ought to have been granted to the School by the Appellate Authority.

4.1. Next he would submit that hearing of the Appeal is vitiated for non-joinder of proper and necessary party since the subsequently appointed Head Teacher in place of the Teacher whose services were terminated was not impleaded as a proper and necessary party. On the merits of the case he would submit that there was no illegality or infirmity in the enquiry conducted by the Enquiry Committee and therefore the finding of the Enquiry Committee directing and holding that the punishment was disproportionate and the school should reconsider the punishment imposed on humanitarian grounds was uncalled for. He would submit that the charges levelled against the Teacher were held to be proved by the Enquiry Committee and once that was the case, punishment of termination imposed for the proven acts of misconduct could not have been held to be excessive and therefore termination of the Teacher was fully justified. He would submit that once it is proven that if the enquiry is fair and proper and the findings in the enquiry are not perverse, then the punishment cannot be interfered with by the Appellate Authorities. He would 6 of 21 submit that charges against the Teacher were of a serious nature, the misconduct was proved and hence the direction to reconsider the punishment on humanitarian grounds is not only illogical but uncalled for in view of the fact that there is no provision in the Grant-in-Aid Code for granting any lesser punishment for acts of proven misconduct. He would therefore urge that once the Enquiry Committee findings have established the guilt of the Teacher beyond reasonable doubt as in the present case, it was not open to either the Education Officer or the MCGM to interfere with the punishment of termination on any ground whatsoever and hence the impugned orders are bad in law and deserve to be quashed and set aside and the order of termination of the Teacher deserves to be upheld.

5. PER-CONTRA, Mr. Vashi, learned Senior Advocate appearing for the Teacher would submit that the timeline in the present proceedings would clearly reveal one thing and i.e. after termination of the Teacher, the School intentionally avoided reinstating the Petitioner despite the order of reinstatement and allowed the Teacher to attain the age of superannuation which she attained on 31.08.2022. He would submit that the Teacher was not gainfully employed during her period of suspension and during the period of enquiry until her termination and even thereafter until her date of superannuation on 31.08.2022. He would submit that one of 7 of 21 the charges in the enquriy before the Enquiry Committee was a complaint filed by the mother of one student for inflicting corporal punishment on the student called Royston Sahu. He would inform the Court that the First Information Report (for short “FIR”) filed by the mother of the student was quashed by this Court in Writ Petition No.4523 of 2015 on 02.12.2015 by consent of both the parties. He would submit that this Court held that the matter was amicably settled by the parties and from perusal of complaint it transpired that the allegations were totally personal in nature and that the offence alleged cannot be said to have any impact on the society. He would submit that though the Teacher was ready and willing to join services after reinstatement to discharge her duties, she was prevented by the School and not allowed to rejoin the School despite she having being continually employed and working as Teacher from 1992 onwards and had an unblemished service record. He would submit that though the allegations / charges against the Teacher were upheld, termination was set aside by the Enquiry Committee and reinstatement was recommended, the first Appellate Authority clearly held that the punishment was disproportionate to the charges. This finding incidentally has also been upheld by the second Appellate Authority (MCGM). He would therefore submit that considering the twin orders this Court needs to take into cognizance the concurrent orders which held that the Teacher deserved reinstatement as also suspension 8 of 21 allowance for the period of suspension and enquiry period. In that view of the matter, he would submit that this Court be pleased to consider the overall facts and pass appropriate orders.

6. Mr. Patil, learned Advocate appearing for the MCGM and the Education Officer has addressed me on the twin orders dated 22.08.2019 passed by the Education Officer and 12.11.2020 passed by the Assistant Commissioner (Education) of the Corporation and would submit that this Court would considered the findings in both the said orders and accordingly pass appropriate orders in the present proceedings. He has advanced submissions in support of both the orders. However, on being specifically questioned about the fact as to whether the Municipal Corporation had pursuant to termination of the Teacher issued the Grant-in-Aid in respect of the post of Teacher held by the Teacher in the present case, he informed that no Grant-in-Aid was issued by the Corporation pursuant to the termination of the Teacher in respect of the post of Teacher held by her to the School. In view of this, I put a question to Mr. Kothari to ascertain and confirm the aforementioned fact as to whether the School had claimed any Grant-in-Aid in view of the appointment of the substitute Head Teacher in place of the Teacher before me and/or received any Grantin-Aid in respect of the same after termination and until the date of superannuation i.e. 31.08.2022. 9 of 21

6.1. The proceedings were specially adjourned for the above issue to enable the parties to inform the Court about the above position. Mr. Kothari has confirmed that the School has not claimed any Grant-in-Aid nor received any Grant-in-Aid from the MCGM for the post which was held by the Teacher after her termination. Equally, the Education Officer of the MCGM is present in Court before me today and would also confirm the same. This was only to ensure that if any affirmative order is passed based upon the reasons and circumstances in the present case, there should not be any impediment for implementation of the said order considering that the post held by the Teacher was a Grant-in-Aid post. Mr. Patil would submit that this Court may also take into account the findings in the Enquiry Committee Report and its recommendation which form the basis of the twin orders passed by the Statutory Authorities of the Municipal Corporation.

7. I have heard Mr. Kothari, learned Advocate appearing for the Trust and the School, Mr. Vashi, learned Senior Advocate appearing of the Teacher and Mr. Patil, learned Advocate appearing for MCGM and with their able assistance perused the pleadings in the present case. Submissions made by the learned Advocates have received due consideration of the Court. 10 of 21

8. In the present case, it is seen that the Teacher was appointed as far back in 1992 and promoted as the Head Teacher w.e.f. 15.06.2007 and during her entire tenure of service prior to the issuance of the charge-sheet which has led to the present proceedings, she has had an unblemished and clean service record. This is a categorical finding in the order of the first Appellate Authority. As also, this is a categorical finding in the order of the second Appellate Authority and is therefore extremely material to the decision in the present case. Next, the origin of the present proceedings i.e. the charge-sheet and the charges levelled therein are thus required to be seen. As alluded to herein above while recording the submissions of Mr. Vashi, it is seen that one complaint filed by the mother of one student for inflicting corporal punishment on the student was amicably settled and withdrawn by her. I have perused the order of the Division Bench in this respect which is appended to the Petition of the Teacher. It is clear that the issue escalated with the filing of the FIR. Record clearly indicates that substantial evidence has been led by both parties to prove and disprove each other’s case on the fact that whether corporal punishment inflicted by the Teacher in respect of one particular student referred to above was indeed inflicted and which led to his hospitalization on the same date because of the said reason. At this stage, I need not detain myself with the evidence of both sides which was led especially when the mother of the student 11 of 21 herself subsequently has withdrawn her complaint and the FIR has been quashed by this Court with certain observations which have also been noted by me above. That leads us to the second complaint which is alleged to be of a corporal nature of allegedly pulling the ear of the student by the Teacher. The findings of the first Appellate Authority clearly show that the punishment inflicted is completely disproportionate and therefore it orders reinstatement. It is clearly seen that qua the alleged allegations in the charge-sheet apart from the aforementioned two incidents, there is only one another incident of suspension of one student by the Teacher for seven days due to an injury caused by the said student to another student. That apart, the other allegations are for being rude, impolite and arrogant behaviour on the part of the Teacher without any specific instances. I have perused the record of the case and one thing that comes to my mind is that the acts of the Teacher were infact to instill discipline in the indisciplined students. It is seen and also certified that a Teacher with an unblemished record from 1992 onwards even after her elevation as Head Teacher from 2007 has not had any previous history of such a nature. This certainly does not mean that any form of corporal punishment shall be endorsed by the Court. All three above instances led to argument with parents, despite parents reasoning out with the Teacher, their conversation was argumentative and in one case it led to the filing of complaint and registration of FIR. 12 of 21

9. Record also indicates that in respect of the Teacher’s unblemished service in the School since 1992 various letters of appreciation were also placed on record. It is also seen that the Teacher was not given any opportunity to reply to the charges and was immediately suspended from service. It is seen that complaint was filed by Mrs. Shruti Sahu, mother of the affected student i.e. Master Royston Sahu and the subsequent FIR which came to be registered which was quashed by the Division Bench of this Court on 02.12.2015, despite which the School continued to press the same charge and also examined Mrs. Shruti Sahu as a witness regarding the complaint filed by her. The School Management examined six witnesses whereas the Teacher has examined herself before the Enquiry Committee. Perusal of the record clearly indicates that save and except one specific complaint in respect of one student Master Royston Sahu in respect of which FIR was registered, all the other charges which do not warrant the punishment meted out to the Teacher. It is seen that the Teacher was recommended / referred to for Mayor’s award and has also received several appreciations letters from the parents of students, the previous Head Master and Principal of the School for her devotion to work. It is also seen that some of the witnesses who were examined on behalf of the School namely parents of two other students were unable to throw any light to prove the allegations of the School against the Teacher. In one such incidence the parent Ms. Harshada 13 of 21 Deshmukhe who was examined in respect of the Teacher’s act of corporal punishment meted out to her son Master Sharvill Prasad Deshmukhe, it is seen that she was not able to prove the case of the School at all. Infact in her cross-examination the said parent admitted that her child was mischievous and she herself used to slap him. She has further admitted that she could not remember any major incident of her child breaking the glass window with the compass box or breaking the handle of the Godrej cupboard or hitting another student by the name of Aditya Kadam and that he bled profusely. Infact this witness has also deposed that it is only on the insistence of Mr. Sabastian George, one of the principal witness on behalf of the School, that she had filed the complaint after almost four months after the alleged incident with her son. Another witness on behalf of the School is a parent namely Mrs. Jyoti Suryavanshi who has filed a complaint against the Teacher after four months with respect to alleged suspension of her son from the School for seven days and further alleged that he was not allowed to go for the School picnic. In her cross-examination this parent could not show as to how the suspension had taken place nor could produce any documentary evidence in the form of the School calendar or record to show that her son was suspended by the Teacher for seven days. All that the Management had to produce was the attendance register to verify the truthfulness of the alleged suspension of Master Kshitij Suryavanshi. 14 of 21 No such attendance register was produced by the School. One of the other witness on behalf of the School is a Teacher called Venita Fernandes who was appointed on the post of Headmaster of the Primary Section of the School by the School Management immediately after the suspension of the Teacher in the present case. This witness and another witness Mrs. Priscilla D’souza have both stated in their cross-examination that Mr. Sebastian George, the principal witness of the School had infact gone through the report given by them before it was submitted to the Protection Officer. It is seen that there are a lot of contradictions and omissions in respect of the evidence of the witnesses of the School before the Enquiry Committee. It is further noted that considering that the School is a Grant-in-Aid School, it was the duty of the School Management to obtain the appropriate approval from the Education Department of MCGM before suspending and terminating the services of the Teacher.

10. Be that as it may, the order of the Education Officer clearly states that the School Management ought to have decided on any other punishment. I have perused the orders passed by the Education Officer and Respondent No.1 – Appellate Authority. In the facts and circumstances of the present case, though at first glance it can be said that inflicting any corporal punishment is an extremely serious matter, what is important to be noted is that in the course of the enquiry 15 of 21 whether such infliction of corporal punishment and the consequences thereof have been proved by cogent evidence or otherwise. As noted above, merely because an allegation of corporal punishment has been made, unless the same is proved to the hilt by cogent evidence, the same cannot be taken to its logical conclusion. It is clearly seen that the sole instance which alleges infliction of corporal punishment in the present case is with respect to Master Royston Sahu and his mother who had filed the complaint. The said complaint / FIR incidentally has also been withdrawn subsequently. Though the Teacher has alleged that there was victimization from the School Management, I would not like to go into those details for the purpose of deciding the present Petitions. Infact I would not like to opine and give any findings in that respect at all. This is so because on the basis of what is discussed herein above and the twin orders passed by the Education Officer and the Appellate Authority and the fact that the Teacher has now already superannuated, I am of the considered opinion that the benefit of doubt needs to be given to the Teacher. The MCGM has also placed on record one circular dated 06.11.1981 issued by the Education Officer which states that all heads of primary Schools were informed that they should not terminate the services of permanent employees without prior approval of the Education Department and without giving any specific / convincing reason. 16 of 21

11. Having considered the above circular as also the facts and circumstances of the present case which have been discussed herein above, I am of the opinion that the order of Education Officer dated 22.08.2019 deserves to be upheld and the said order is therefore sustained. It is seen that the School did not comply with the said order by reinstating the Teacher nor the said order was stayed by Respondent No.1 in Appeal proceedings. As a result of which the Teacher shall be entitled to backwages from 22.08.2019 onwards.

12. In view of the above, the order dated 24.11.2020 passed by Respondent No.1 granting backwages to the Teacher as directed is therefore set aside.

13. In view of my above findings, it is seen that the Teacher was suspended w.e.f. 18.06.2015. The Teacher was paid 50% of salary as a subsistence allowance for a certain period and 75% of salary as subsistence allowance for certain period. The difference in the subsistence allowance according to the Petitioner comes to Rs.4,74,687/- (Rupees Four Lakh Seventy Four Thousand Six Hundred Eighty Seven only) including two bonus. The Teacher shall be entitled to this subsistence allowance subject to detailed computation to be given by the Teacher to the School and Education Officer within two weeks from today. 17 of 21

14. The Teacher will not be entitled to any salary for the period from 01.02.2017 to 22.08.2019 on the principle of ‘no work no pay’. However, it is directed that the said period will not be considered as a break in service. The yearly increments for the said period will be taken into account for calculating the salary from 22.08.2019 onwards.

15. The Teacher has superannuated on 31.08.2022. With the result, the question of reinstating the Teacher does not arise. It is to be noted that during the suspension of the Teacher from 18.06.2015 till the superannuation of the Teacher on 31.08.2022, the management has not filled up the post occupied by the Teacher. Petitioner No.2 School is an aided School. Therefore, once the termination order is set aside, Respondent Nos.[1] and 2 are bound to pay the subsistence allowance and full backwages to the Teacher, being part of the grant.

16. Accordingly, Respondent Nos.[1] and 2 are ordered and directed to pay to the Teacher the following amounts after due compliances and computations to the satisfaction of the Respondents which shall be done within two weeks from today:a. The MCGM will pay to the Teacher a sum of Rs.4,74,687/- (Rupees Four Lakh Seventy Four Thousand Six Hundred and Eighty Seven only) being 18 of 21 the balance subsistence allowance for the period of suspension of the Teacher’s services i.e. from 18.06.2015 to 01.02.2017 alongwith two bonuses. b. The MCGM will pay to the Teacher the following amounts towards the backwages:i. a sum of Rs.5,34,412 (Rupees Five Lakh Thirty Four Thousand Four Hundred and Twelve only) alongwith one bonus for the period August, 2019 to March, 2020. ii. a sum of Rs.8,66,007/- (Rupees Eight Lakh Sixty Six Thousand and Seven only) alongwith one bonus for the period April, 2020 to March, 2021. iii. a sum of Rs.9,29,178/- (Rupees Nine Lakh Twenty Nine Thousand One Hundred and Seventy Eight only) alongwith one bonus for the period April, 2021 to March, 2022. iv. a sum of Rs.4,28,559/- (Rupees Four Lakh Twenty Eight Thousand Five Hundred and Fifty Nine only) for the period April, 2022 to August, 2022. 19 of 21

17. The Teacher has retired from service on 31.08.2022 on attaining the age of superannuation. The MCGM will pay all the retirement benefits to the Teacher including pension and gratuity. The services of the Teacher will be considered as continuous from her date of appointment i.e. 03.01.1992 till the date of superannuation i.e. 31.08.2022 for calculation of the retirement benefits.

18. The MCGM will pay to the Teacher all consequential benefits such as salary, increments, bonuses, revision as per Pay Commission etc. for continuous services till retirement.

19. The School and its Management and specifically the present Head Mistress will complete the service book of the Teacher and forward the file of the Teacher to the Respondent Nos.[1] and 2 for completing the above compliances for release of the amounts set out hereinabove within a period of four weeks from the date of uploading of the present order.

20. Respondent Nos.[1] and 2 (MCGM) are ordered and directed to process the file and release the amounts within a period of four weeks from the date of submission of the file by the School.

21. All parties are directed to cooperate for submitting the necessary documents and complying with any requisitions that may arise hereafter and adhere to the above timeline. Liberty to apply. 20 of 21

22. Both the above Writ Petitions stand disposed of on the aforesaid terms.

23. No order as to cost. [ MILIND N. JADHAV, J. ] Ajay