SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL & ORS. versus VIDYA (DEAD) THRU LRS. & ANR. on 9 July 2019

1. Leave granted.

2, These appeals arise from the impugned judgments and ordersof the High Court of Judicature at Bombay dated 16 December 2015and 1 March 2017.

3. The dispute relates to the termination of the services of theoriginal respondent (since deceased) after a disciplinary enquiry. Theoriginal respondent was engaged as a Head Mistress by the third appellant,Anjanabai Zode Kanya Vidyalaya, Ashti in the District of Wardha inMaharashtra. A charge-sheet was issued to the employee on 15 January1998 levelling as many as 53 charges, including a charge of mis-appropriation. An Enquiry Committee of three members was constitutedunder Rule 36 of the Maharashtra Employees of Private Schools(Conditions of Service) Rules 1981[1]. Following the disciplinary enquiry,a combined report was submitted by the Enquiry Committee on 29 June1998. One of the three members of the Committee expressed a dissentingview. The services of the employee came to be terminated on 3 July1998. An appeal was filed before the School Tribunal. The Tribunal, byits decision dated 27 April 2005, rejected the appeal following which awrit petition was filed by the respondent before the High Court.

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A4. The sole ground which weighed with the High Court was thatthere was nothing on record to show that the three members of theEnquiry Committee had assembled and carried out deliberations beforepreparing and submitting their respective reports. Hence, there was abreach of Rule 37(6). The order of termination was set aside. However,since the employee had retired on attaining the age of superannuation inB2009 and had died on 26 September 2013, the management was directedto pay 50% of the arrears of salary for the period from 3 July 1998 untilAugust 2009. The claim of the respondents for family pension wasdenied. A review application filed by the appellants was dismissed on1 March 2017.C

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5. Assailing the judgment of the High Court, learned counselappearing on behalf of the appellants submits that the requirements ofRule 37(6) of the 1981 Rules were duly fulfilled. It was urged that thedecision of this Court in Vidya Vikas Mandal v the Education Officer[2]isclearly distinguishable since, while construing the provisions of Rule 37(6)Dof the 1981 Rules, it was found that the findings by two members of thethree member Committee had been submitted after the period prescribedto submit the report had expired. This Court held, it was urged, thatwhen a Committee of three members is appointed to enquire into aparticular matter, all three members should submit a combined report,whether consenting or otherwise. Hence, the decision isEdistinguishable.

6. Learned counsel appearing for the appellants produced acompilation of documents in support of the submission that the EnquiryCommittee met on several prior dates. After a meeting on 14 June1998, copies of the findings were received on 18 June 1998. On 29 JuneF1998, the Report, which was compiled by the Convener, was read overbefore the Committee and was approved with certain amendments.Hence, it was urged that the requirement of Rule 37(6) of the 1981Rules has been fulfilled.

7. On the other hand, learned counsel appearing on behalf of theGrespondents adverted to an affidavit which was filed by the third memberof the Committee before the Tribunal raising his objections to theprocedure which was followed by the Committee, in support of thesubmission that the requirements of Rule 37(6) were not fulfilled.

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8. From the record which has been produced before the Court, itemerges that on 18 June 1998, the following minutes were recorded bythe Enquiry Committee:

“(2) Subject No.2 : Submission of findings of the CommitteeMembers.

Explanation: As resolved in the meeting dtd. 14-6-98, the copiesof the findings of all the three members of the Committee arereceived.

(1) Shri A.S. Gavarshettiwar – Total Pages 5 of the copies offindings.

(2) Shri Mukteda Hasan – Total 10 pages of his findings

(3) Shri A.R. Zode – Total Pages

The Members of the Committee has taken the decision that, insteadof writing all these findings in the Proceeding Book, it should bekept in the concerned file for reference and for having decidedso, there is need to take its entry in it which is resolved by theCommittee unanimously.”

Thereafter, it was agreed that:

“It is unanimously resolved that, the Convener should prepare theCompiled Report and Decision from the findings received and byputting up it in the next meeting of the Inquiry Committee dtd.29-6-98 and obtaining approval of the Committee to it, it should besent to the Management Committee.”

9. Subsequently, on 29 June 1998, the Enquiry Committee recordedthe following minutes:

“Subject No.(2): To submit the Compiled Report as per findingsreceived from the Members of the Inquiry Committee and to obtainapproval to it.

Details: The Compiled Report prepared by A.R. Zode, Convenerof the above Inquiry Committee was put up and read over beforethe Committee. After reading, it was approved with someamendments.

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Subject No.(3):To approve the Final Report of the aboveInquiry Committee with findings and Decisions andrecommendations therein.

Details: The Final Report prepared by Shri A.R.Zode, Convenerof the above Inquiry Committee on the basis of the finding wasread over with the Decisions and Recommendations before theMeeting. Upon it, two Members of the Inquiry Committee, namely,Shri A.R.Zode and Shri Gavarshettiwar have decided that Smt.V.D. Deshpande is guilty. There is unanimity of these twoMembers in this regard. As per Shri Mukteda Hasan, the decisionas taken is not proper and the Head Mistress is guiltless. However,as per the Final Report, findings, decision and recommendationsof the Inquiry Committee it is passed with unanimity of the abovetwo members of the Inquiry Committee. Subject No.4: Conductedand completed the proceeding of the Inquiry Committee as perthe Rules. Therefore, this was the Final Meeting. It is unanimouslyresolved in this meeting that the further action which is to betaken henceforth under the Rules in the Maharashtra Employeesof Private Schools (Conditions of Service) Regulations, 1981 shouldbe taken by the Convener.

As the proceeding in respect of the inquiry by the InquiryCommittee before the today’s Final Meeting is completed, theConvener of the Inquiry Committee has paid thanks too all theMembers and as all the Members have given cooperation to theInquiry Committee by remaining present in all the meetings withintime, the Convener Shri A.R. Zode, by paying thanks to all theMembers of the Inquiry Committee and all the concerned, hasdeclared that this Final Meeting is over.”

10. The Report of the Enquiry Committee dated 29 June 1998was duly signed by all the three members. Two members concludedthat the charges were duly proved. The third member of the EnquiryCommittee, however, recorded his dissent while signing the Report. It isevident that the requirements of Rule 37(6) of the 1981 Rules were dulyfulfilled. Rule 37(6) of the Rules provides as follows:

“37(6). On receipt of such further explanation or if no explanationis offered within the aforesaid time the Inquiry Committee shall complete the inquiry and communicate its findings on the chargesagainst the employee and its decision on the basis of these findingsto the Management for specific action to be taken against theemployee or the Head, as the case may be, within ten days afterthe date fixed for receipt of further explanation. It shall alsoforward a copy of the same by registered post acknowledgmentdue to the employee or the Head, as the case may be. A copy ofthe findings and decision shall also be endorsed to the EducationOfficer or the Deputy Director, as the case may be, by registeredpost acknowledgment due. Thereafter, the decision of the InquiryCommittee shall be implemented by the Management which shallissue necessary orders within seven days from the date of receiptof decision of the Inquiry Committee, by registered postacknowledgment due. The Management shall also endorse a copyof its order to the Education Officer or the Deputy Director asthe case may be.”

11. In the decision of this Court in Vidya Vikas Mandal (supra),two of the three members forming a part of the Committee had submittedthe report beyond the time period stipulated, while only one member hadsubmitted the report within the period prescribed. This Court observed,thus:

“9. As rightly pointed out by the learned counsel for the appellants,Rule 37 (6), which is mandatory in nature, has not been strictlycomplied with. The Inquiry Committee comprising of threemembers, as already noticed, only one member nominated by theManagement has submitted his Inquiry report within the timestipulated as per Rule 37 (6) and admittedly, the other two membersnominated by the employee and an independent member have notsubmitted their report within the time prescribed under Rule 37(6). However, the learned Judges of the Division Bench, thoughnoticed that the two members out of three found the employeenot guilty, failed to appreciate that the said findings by the twomembers of the committee were submitted after the expiry of theperiod prescribed under Rule 37(6). In our opinion, the reportsubmitted by individual members is also not in accordance withthe Rules. When the Committee of three members are appointedto inquire into a particular matter, all the three should submit their A

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Acombined report whether consenting or otherwise. Since the reportis not in accordance with the mandatory provisions, the Tribunaland the learned Single Judge and also the Division Bench of theHigh Court have committed a serious error in accepting the saidreport and acted on it and thereby ordering the reinstatement withback wages...”B

12. The factual position in Vidya Vikas Mandal (supra) is clearlydistinguishable from the facts of the present case. We have alreadynoted that the requirements of Rule 37(6) of the 1981 Rules were fulfilled.

13. For the above reasons, we are of the view that the basis onCwhich the High Court allowed the writ petition filed by the employeewas misconceived. The impugned judgments and orders of the HighCourt are accordingly set aside.

14. The High Court has also observed, in the course of its judgment,that the learned counsel appearing on behalf of the contesting partiesDhad made submissions on “various points”. The High Court did notconsider it appropriate to deal with all the contentions on the basis thatthe decision of this Court in Vidya Vikas Mandal (supra) governs thecase. We would have ordinarily remanded the proceedings to the HighCourt for considering those grounds of challenge. However, learnedcounsel appearing on behalf of the respondents has stated before theECourt that an order of remand, at this stage, would not serve the ends ofjustice since the employee has died and the proceedings are being pursuedby her legal representatives. Hence, learned counsel appearing on behalfof the respondents has submitted that it would be appropriate if themanagement pays some ex gratia amount in full and final settlement.F

15. Learned counsel appearing on behalf of the appellants hasstated that the retiral dues of the deceased employee of approximatelyRupees eight lakhs were duly paid and she was gainfully employed afterher termination. Be that as it may, it has been stated that an amount ofRupees one lakh fifty thousand shall be paid to the respondents purelyGas an ex gratia payment on humanitarian grounds in full and finalsettlement.

16. Acceding to the request, we close the proceedings in the aboveterms. The aforesaid payment shall be made over to the respondents within a period of one month from the date of receipt of a certified copyof this order.

17. The appeals are accordingly disposed of. There shall be noorder as to costs.

Ankit Gyan

Appeals disposed of.

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