JUDGEMENT
R. M. Savant, J. -
(1.)Rule, with the consent of the parties made returnable forthwith and heard.
(2.)The short question that arises for consideration in this writ petition filed under Articles 226 and 227 of the Constitution of India is whether the petitioners should be permitted to conduct a fresh inquiry against the respondent No. 1 in view of the fact that earlier inquiry was found to be defective as a consequence of which, the order imposing punishment of termination of service of respondent No. 1 came to be set aside by the School Tribunal. 2-A. The petitioners have filed the above petition impugning the order passed by the school Tribunal, Splapur dated 17-4-2007. By the said order, the appeal filed by the respondent No. 1 herein being Appeal No. 8 of 2007 came to be allowed and the petitioners were directed to reinstate the respondent No. 1 from the date of her termination i. e. 30-12-2006 and be paid 50 per cent of the back wages; the factual matrix involved in the above petition is stated thus, the respondent No. 1 was appointed as an Assistant Teacher in the school run by the Trust known as Shri Sant Savata Ashram shikshan Samiti. The petitioners are the office bearers of the said Trust. Initially, the said Trust was running a primary school and thereafter the said Trust had secured permission for the secondary school and started the said secondary section in or about year 1995. The respondent No. 1, having acquired higher qualification of B. P. Ed, in the year 1999-2000 was appointed as Assistant teacher in the secondary school and thereafter she was promoted as Head Mistress from 1-1-2005 which appointment was also approved by the Education Officer by order dated 27-4-2005. The respondent No. 1 was issued a statement of allegations dated 24-2-2006 in respect of two charges levelled against her which the respondent No. 1 replied within the time stipulated by the Management. The respondent no. 1 was thereafter issued the charge-sheet on 1-5-2006 with an additional charge incorporated therein. The Management thereafter proceeded to hold enquiry against the respondent No. 1 by constituting an Inquiry Committee and based on the findings of the Inquiry Committee terminated the services of the respondent No. 1 on 30-12-2006. The respondent no. 1, being aggrieved by the said termination, filed appeal before the School Tribunal, solapur which came to be numbered as appeal No. 8 of 2007. The respondent No. 1 in the appeal memo has specifically raised the grounds regarding the manner in which the inquiry was conducted against her and especially the ground that the inquiry was not initiated by the person competent to initiate it in terms of the Maharashtra Employees of Private Schools (Gonditions of Service) Rules, 1981, (hereinafter referred to as the meps Rules' for the sake of brevity) and also the ground that the constitution of the Inquiry Committee was not as contemplated in the said Rules and also that the termination order has been issued by a person who is not competent to issue the said order in terms of the said Rules. The petitioners herein filed their say to the said Appeal and contended that the inquiry has been properly conducted against the respondent No. 1 and denied that the constitution of the Inquiry committee or the termination of the respondent no. 1 was improper. The learned Member of the school Tribunal came to a conclusion that the inquiry conducted against the respondent No. 1 was vitiated on account of the fact that there was breach of Rules 36 (1) , 37 and 38 of the MEPS Rules inasmuch as though the President of the Management ought to have issued the statement of allegations, the same was issued by the Chairman of the school Committee who is incompetent to issue the same. The learned Member of the School Tribunal relied upon a judgment of this Court reported in 1992 (Supp. ) Bom. C. R. (N,b. ) 407 : 1992 Mh. L. J. 216 in the matter of (Kankubai Shrvikashram Trust and others Vs. Kamal w/o. Dattatraya khajurkar and others) , in which case it has inter alia been held that in so far as the head of the School is concerned, the statement of the allegations ought to be issued by the president of the Management. The said view in Kankubai's case has been confirmed by the Full Bench judgment of this Court in the case of (National Education Society, Nagpur vs. Mahendra Baburao Jamkar and another) , reported in 2007 (3) Bom. C. R. (F. B. ) (N. B. ) 521 : 2007 (3) Mh. L. J. 207. The School Tribunal, therefore, found that the inquiry was vitiated at its inception on account of the fact that the statement of allegations were not issued by the President of the Management but by the Chairman of the School Committee. The learned Member of the School tribunal also came to a conclusion that the inquiry was also vitiated on account of the fact that the constitution of the Inquiry Committee was not in accordance with Rules 36 (2) (b) and 37 of the said MEPS Rules. Though the president of the Management was required to be a Member of the Inquiry Committee, in the instant case, he was not a Member of the Inquiry Committee and the Secretary, one shri Borhate was participating in the proceedings. The learned Member of the School tribunal has also observed that one Sunil jadhav, Secretary of the School Committee, was also found present at the time of inquiry. Shri Borhate, who was not the President of the said Trust, has worked as Convener of the Inquiry Committee. The learned Member of the School Tribunal, therefore, came to a conclusion that there was a breach of rules 36 and 37 in the matter of constitution of the Inquiry Committee and also the manner in which the proceedings were conducted. The learned Member of the School tribunal also found that there was a breach of the Rule 38 of the said MEPS Rules inasmuch as though the termination order ought to have been issued by the Chief Executive officer pursuant to the Resolution passed by the Management in that behalf, the said termination order was issued by the Chairman of the School Committee who was incompetent to issue it. The learned Member of the School Tribunal, therefore, came to a conclusion that the entire inquiry right from its inception was vitiated on account of the aforesaid breaches and since a defective inquiry is tantamount to no inquiry, the learned member of the School Tribunal directed the reinstatement of the respondent No. 1 with 50 per cent back wages. As indicated above, it is this order passed by the learned Member of the School Tribunal which is impugned in the present petition.
(3.)I have heard learned Senior Counsel shri P. M. Shah, for the petitioners, Shri S. S. Jadhavar, learned Counsel for the respondent no. 1 and Shri V. H. Dighe, learned Asstt. Govt. Pleader for the respondent No. 2. The principal submission of Shri P. M. Shah, learned Senior Counsel appearing for the petitioner is that since the School Tribunal had found the inquiry vitiated, there were two courses open to the School Tribunal either to remand the matter back for facilitating a de novo inquiry against the respondent no. 1 or it was open for the School Tribunal to direct the parties to lead evidence before it and thereafter the School Tribunal could have gone into the charges levelled against the respondent No. 1. The School Tribunal, according to the learned Senior Counsel, has erred in not following either of the courses but directing the reinstatement of the respondent No. 1 with 50 per cent back wages. The learned Senior Counsel further submitted that the petitioners have no grievance about the findings recorded by the School tribunal in respect of the breach of the Rules in the matter of the conduct of the inquiry against the respondent No. 1. The learned senior Counsel submits that, in all humility, the petitioners accept the said findings but, however, are aggrieved by the fact that the School Tribunal has not permitted them to hold a de novo inquiry against the respondent no. 1. The learned Senior Counsel placed reliance on the judgment of the learned single Judge of this Court in the matter of (Adarsh Vidya Mandir Trust and Another Vs. Awadesh Narayan Komal Singh) , reported in 2005 (1) Bom. C. R. 786 : 2004 (4) Mh. L. J. 173, in support of his submission that since the inquiry was found to be vitiated, the management should be allowed to conduct a de novo inquiry against the respondent No. 1. The learned Senior Counsel relied upon paragraphs nos. 7, 8, 9 and 10 of the said judgment, which according to him are relevant. The said paragraphs are reproduced hereinunder -7. Having considered the rival submissions, I have no hesitation in affirming the opinion expressed by the Tribunal that the enquiry conducted by the Management is vitiated on account of breach of principles of natural justice. The Tribunal has recorded reasons to support the said opinion which, to my mind, are unexceptionable. However, there is substance in the argument canvassed on behalf of the petitioners that assuming that the enquiry was bad on that count, the tribunal had two options either to decide the charges itself on merits or to relegate the parties for further enquiry from the stage where the Tribunal has found fault with the fairness of the disciplinary enquiry conducted against the respondent No. 1. 8. The submission is supported by the two decisions pressed into service. The Division bench of our High Court in the case of (Children's Educational Uplift Societyvs. Kaushlya govindsingh Moral) , 1981 Bom. C. R. 848 in para 5 has observed thus :
"5.however, the Tribunal has erred in setting aside the order of termination of the services and granting reinstatement only on that ground. Once the Tribunal came to the conclusion that the constitution of the committee was improper the correct course was either to order a fresh inquiry with the constitution of a new committee, or to hold the inquiry itself into the merits of the charges, it appears that the Tribunal is not aware of its powers under the Act. Section 10 and 11 of the Act read together give ample power to the tribunal as are vested in the Appeal Court under the Civil Procedure Code, 1908. The tribunal could therefore have remanded the matter for a fresh inquiry or disposed of the matter by recording the evidence itself. The failure on the part of the Tribunal to do so has resulted in an avoidable delay of about four years and has undoubtedly resulted in hardship to both the parties. " (emphasis supplied). 9. Even the dictum of the Apex Court in the reported decision in the case of State of Punjab (supra) will be useful. It has observed in para 3 of the said decision as follows :
"3.. . It is now a well settled law that when the enquiry was found to be faulty, it could not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon. The High court had committed illegality in omitting to give the said direction. . . . . " 10. Applying the principle enunciated in the aforesaid decisions, the appropriate course, to my mind, is to relegate the parties before the Tribunal, which in turn, will enquire into the matter on merits of the charges itself by affording fair opportunity to both the sides, including of adducing evidence as may be permissible by law on merits of the charges. The parties in the present case have no objection for adopting that course. Accordingly, this petition succeeds. The order passed by the Tribunal is set aside and the Appeal is restored to the file of the Tribunal for being considered afresh in the light of the observations made hereinbefore. As can be seen from the said judgment in the said case, the inquiry was found vitiated on account of the breach of principles of natural justice and, therefore, learned judge had remanded the matter back to the school Tribunal by giving opportunity to the parties to lead evidence before it and thereafter the Tribunal was to consider the matter on merits. The learned Single Judge has relied upon the judgment of the Apex Court in the matter of (State of Punjab and others vs. Dr. Harbhajan Singh Greasy) , reported in 1996 DGLS 754 : J. T. 1996 (5) S. C. 403 : 1996 (4) SCALE 195 : 1996 (9) S. C. C. 322, where the Apex Court has held that when the enquiry was found to be valid, it could not be proper to direct reinstatement with consequential benefits but matter requires to be remitted to the Disciplinary Authority to follow the procedure from the point at which the fault was pointed out and to take action in accordance with law. Pending enquiry, the delinquent must be deemed to be under suspension. It is, therefore, the submission of learned Senior Counsel that since the enquiry was found to be vitiated by the Tribunal it was for it to direct the parties to lead evidence before it and then decide the matter or remand the matter back to the Management for de novo enquiry. Having not found it fit to try the matter it-self by directing the parties to lead evidence, the Tribunal ought to have allowed the management to conduct a de novo enquiry. The learned Senior Counsel, therefore, submitted that the impugned order passed by the School Tribunal is against well settled principles of law and, therefore, requires to be set aside.