Full Judgment Text
REPORTABLE
IN THE SUPEME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7937 of 2011
JAI BHAVANI SHIKSHAN PRASARAK MANDAL … APPELLANT(S)
VERSUS
RAMESH & ORS. …RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
1. The removal from service of respondent No.1 herein from the
post of Principal of the Institute of Pharmacy, having been set aside
by the School Tribunal, Aurangabad and the same having been
confirmed by the learned Single Judge and the Division Bench of
the High Court, the Educational Society running the Institute of
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2022.03.29
16:27:45 IST
Reason:
Pharmacy has come up with the above appeal.
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2. We have heard the learned counsel appearing for the first
respondent and the learned counsel for the State of Maharashtra.
3. The appellant is an Educational Society registered under the
Bombay Public Trusts Act. It is running an institute of Pharmacy at
Gadhi Georai Dist., Beed. In the year 1991, the first respondent
herein was appointed as the Principal of the said Institute. In the
year 2004 disciplinary proceedings were initiated against him on
certain allegations of serious nature. The Departmental Inquiry
Committee held an inquiry in which the first respondent was given
all opportunities of fair hearing, including permission to be
represented by a lawyer. After the completion of the inquiry, the
Inquiry Committee submitted a report on 31.07.2004 holding 7 out
of 10 charges proved. Therefore, after issuing a show cause notice
enclosing a copy of the Inquiry Report, the Management passed an
order dated 19.08.2004 imposing upon the first respondent, the
penalty of removal from service.
4. The first respondent challenged the penalty before the School
Tribunal by way of an appeal under Section 9 of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
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1977 ( hereinafter referred to as the ‘Act’ ). The School Tribunal
framed five issues as arising for consideration namely: (i) Whether
the Inquiry Committee constituted by the Management to conduct
further inquiry against the employee was proper, legal and
permissible by law? (ii) Whether the Management did not pay
subsistence allowance and whether nonpayment of subsistence
allowance vitiated the inquiry?; Whether the inquiry was
(iii)
vitiated on account of the fact that the Management conducted the
inquiry by engaging a lawyer?; (iv) Whether the Management
conducted the inquiry by following Rule 37 of MEPS Rules, 1981?;
and (v) Whether the impugned dismissal order was legal and
sustainable in law. Out of these five issues, the Tribunal found
only the issue relating to the constitution and composition of the
Inquiry Committee to be not in accordance with the Rules.
Therefore, the said appeal was allowed by the Tribunal by an order
dated 22.06.2006, primarily on the ground that the constitution of
the Inquiry Committee was not in accordance with Rule 36(2)(b) of
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the Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 ( hereinafter referred to as the “MEPS Rules ”).
5. The appellantManagement filed a writ petition in WP No.5387
of 2006 on the file of the High Court of Judicature at Bombay,
Aurangabad Bench. A learned Judge of the High Court dismissed
the writ petition, affirming the view taken by the School Tribunal.
6. The intracourt appeal filed by the appellantManagement was
dismissed by the division Bench, by placing reliance upon the
decision of the Full Bench of the High Court in
National
Education Society, Nagpur and another vs. Mahendra, s/o
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Aggrieved by the said order the
Baburao Jamkar and another .
Management is on appeal before us.
7. Since the entire dispute revolves around the constitution of
the Departmental Inquiry Committee with reference to Rule 36 of
the MEPS Rules, it is necessary first to look into Rule 36.
“ 36. Inquiry Committee . (1) If an employee is allegedly
found to be guilty on (any of the grounds specified in sub
rule (5) of Rule 28) and the Management decides to hold an
inquiry, it shall do so through a properly constituted Inquiry
Committee. Such a committee shall conduct an inquiry only
in such cases where major penalties are to be inflicted. The
1 2007(3) Mh.L.J 707
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Chief Executive Officer authorised by the Management in
this behalf (and in the case of an inquiry against the Head
who is also the Chief Executive Officer, the President of the
Management) shall communicate to the employee or the
head concerned by Registered Post acknowledgement due
the allegations and demand from him a written explanation
within seven days from the date of receipt of the statement of
allegations.
(2) If the Chief Executive Officer or the President, as
the case may be, finds that the explanation submitted by the
employee or the Head referred to in subrule (1) is not
satisfactory, he shall place it before the Management within
fifteen days from the date of receipt of the explanation. The
Management shall in turn decide within fifteen days whether
an inquiry be conducted against the employee and if it
decides to conduct the inquiry, the inquiry shall be
conducted by an Inquiry Committee constituted in the
following manner, that is to say
(a) in the case of an employee
(i) one member from amongst the members of the
Management to be nominated by the
Management, or by the President of the
Management if so authorised by the
Management whose name shall be
communicated to Chief Executive Officer within
15 days from the date of the decision of the
Management;
(ii) One member to be nominated by the
employee from amongst the employees of any
private school;
(iii) one member chosen by the Chief Executive
Officer from the panel of teachers on whom
state/National Award has been conferred;
(b) in the case of the Head referred to in subrule (1)
(i) one member who shall be the President of
the Management;
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(ii) one member to be nominated by the Head
from amongst the employees of any
private school;
(iii) one member chosen by the President from
the panel of Head Masters on whom
State/National Award has been
conferred.
(3) The Chief Executive Officer or, as the case may be, the
President shall communicate the names of members
nominated under subrule (2) by Registered Post
acknowledgement due to the employee or the Head referred
to in sub rule (1), as the case may be, directing him to
nominate a person on his behalf on the proposed Inquiry
Committee and to forward the name alongwith the written
consent of the person so nominated to the Chief Executive or
to the President, as the case may be, within fifteen days of
the receipt of the communication to that effect.
(4) If the employee or the Head, as the case may be,
communicates the name of the person nominated by him the
Inquiry Committee of three members shall be deemed to
have been constituted on the date of receipt of such
communication by the Chief Executive Officer or the
President, as the case may be. If the employee or such head
fails to communicate the name of his nominee within the
stipulated period, the Inquiry Committee shall be deemed
to have been constituted on expiry of the stipulated period
consisting of only two members as provided in subrule (2).
(5) The Convener of the respective Inquiry Committee
shall be the nominee of the President, or as the case may be,
the President who shall initiate action pertaining to the
conduct of the Inquiry Committee and shall maintain all the
relevant record of the Inquiry.
(6) The meetings of the Inquiry Committee shall be held in
the School premises during normal school hours or
immediately thereafter, if the employee agrees and even
during vacation.”
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8. Two expressions namely “ Head ” and “ Chief Executive Officer ”
used in subrule (1) of Rule 36 provide the fulcrum of the
controversy on hand. The expression “ Head ” is not defined in the
Rules. However, the expression “ Chief Executive Officer ” is defined
in Rule 2(1)(c) as follows:
“Chief Executive Officer” means the Secretary, Trustee,
Correspondent or a person by whatever name called who is
empowered to execute the decisions taken by the
Management.”
9. The word “ Head ” is defined in Section 2(9) of the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 as follows:
“Head of a school” or “Head” means the person, by whatever
name called in charge of the academic and administrative
duties and functions of a school conducted by any
Management and recognised or deemed to be recognised
under this Act, and includes a principal, vice principal,
headmaster, headmistress, assistant headmaster,
assistant headmistress or superintendent thereof”
10. Subrule (2) of Rule 36 provides for the composition of the
Inquiry Committee in a particular manner in the case of “ an
employee ” and it provides for the composition of the Inquiry
Committee in a different manner in the case of “ ”. In other
the Head
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words, the Inquiry Committee can comprise of (i) one member
amongst the members of the Management, nominated by the
management or the President; (ii) one member nominated by the
employee from amongst the employees; and (iii) one member
chosen by the Chief Executive Officer from the panel of teachers, if
the inquiry is against “an employee”. But if the inquiry is against
the Head, the Inquiry Committee should comprise of: (i) the
President of the Management; one member to be nominated by
(ii)
the Head from amongst the employees of any private schools; and
(iii) one member chosen by the President from the panel of Head
Masters.
11. In the case on hand, there is and there can be no dispute
about the fact that the first respondent was the Head within the
meaning of the expression in terms of Section 2(9) of the Act, as he
was the Principal of the Institute. But admittedly the first
respondent was not the Secretary, Trustee or Correspondent of the
Institute, to fall within the definition of the expression “ Chief
Executive Officer ” under Rule 2(1)(c) of the Rules.
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12. The main contention of the first respondent which was
accepted by the School Tribunal and the High Court was that by
virtue of Rule 36(2)(b) of the Rules, the President of the
Management should have been one of the members of the Inquiry
Committee. There is no dispute about the fact that the President of
the appellantSociety was not a member of the Inquiry Committee.
But this fact provides only one part of the story.
13. The other part of the story is that the Departmental Inquiry
Committee as originally constituted, had the President of the
appellantSociety as a Member. But the case of the management is
that by a letter dated 13.06.2004, the President requested the
appellantSociety to relieve him due to ill health. Therefore, by a
letter dated 14.06.2004 one of the VicePresidents was requested to
be part of the Inquiry Committee. But the said Vice President also
recused due to family problems. Therefore, by a letter dated
16.06.2004 another VicePresident was nominated to be part of the
Inquiry Committee. The said VicePresident also opted out.
Therefore, by a Resolution dated 22.06.2004, the Management
decided to confer all the powers of the President to one Shri
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Amarsingh Shivaji Rao Pandit. The said resolution reads as
follows:
“Resolution no. 4: The President Mr. Shivajirao Ankushrao
Pandit is the president and inviter of the Departmental
Enquiry Committee for inquiry of Mr. Kalkotwar R. S.
(Suspended Principal). Therefore, he is president of the
enquiry committee for Departmental enquiry of Mr.
Kalkotwar, but Mr. Shivajirao Ankushrao Pandit by his
application due to ill health and as per advice of doctors
have intimation to take rest. His application and documents
annexed thereto have been considered and his excuse
appears reasonable. Therefore, all the powers of the
president of Jaibhawani Shikshan Prasarak regarding the
work to conduct the Enquiry id hereby given to Mr.
Amarsingh Shivajirao Pandit. Therefore, it was unanimously
decided by all that, henceforth, Mr. Amarsingh Shivajirao
Pandit will see the work as president and inviter of the
departmental enquiry committee conducting inquiry of Mr.
Kalkotwar R.S.”
14. But the School Tribunal held that the aforesaid Resolution
dated 22.06.2004 surfaced only after the conclusion of the
arguments in the appeal and that, therefore, it could have been
prepared as an afterthought. The learned Single Judge of the High
Court refused to interfere with this finding of fact, on the ground
that the supervisory jurisdiction of the High Court was limited
under Article 227 of the Constitution.
15. But the School Tribunal as well as the High Court omitted to
take note of the very pleadings of the first respondent in his appeal
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before the Tribunal. In paragraph 7 of the Memorandum of Appeal
submitted by the first respondent before the School Tribunal, he
admitted that the chargesheet was signed by Shri Shivaji Rao
Pandit, the President of the Society. In paragraph 9 of the
Memorandum of Appeal, the respondent No.1 also admitted that by
a letter dated 26.06.2004 he was informed about the ill health of
the President of the Society and the appointment of Shri Amarsingh
Shivaji Rao Pandit in his place. Paragraphs 9 and 10 of the
Memorandum of Appeal filed by the first respondent herein, before
the School Tribunal reads as follows:
“The appellant states that when the inquiry was under
progress, the Administrative officer of the Respondent No. 1
Society, vide his letter dated 26.6.2004, informed the
appellant that since the President of the Society was ill, his
representative Shri. Amarsing Shivajirao Pandit, who is the
Member of the Respondent No. 1 Society, shall be the
Convenor of the Inquiry Committee. A copy of this letter
dated 26.6.2004 issued by the Administrative officer of the
Respondent No.1 Society is annexed herewith and marked as
EXHIBIT “G”.
The appellant further states that vide letter dated
30.6.2004, the Administrative Officer of the Respondent No.
1 Society has issued a Corrigendum whereby it was informed
that Shri Amarsinh Pandit would act as the Convenor of the
Inquiry Committee and the President during the course of
the Inquiry. A copy of the said Corrigendum dated
30.6.2004, issued by the Administrative Officer of the
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Respondent No. 1 is annexed herewith and marked as
EXHIBIT “H”.”
16. Unfortunately the School Tribunal as well as the High Court
failed to take note of the very pleadings of the first respondent with
regard to the circumstances in which the President of the Society
could not continue as part of the Inquiry Committee. Therefore, the
order of the School Tribunal was vitiated by perversity.
17. In any case, Rule 36(2)(a) begins with the words “ in the case of
”. Rule 36(2)(b) begins with the words “
an employee in the case of the
Head referred to in subrule (1) ”.
18. The interpretation given by the School Tribunal and the High
Court to the aforesaid Rule would have been acceptable, if Rule
36(2)(b) had began only with the words “ in the case of the Head ”.
But it begins with the words “ in the case of the Head referred to in
subrule (1) ”.
19. Subrule (1) refers to the Head who is also the Chief Executive
Officer. Therefore, clause (b) of subrule (2) of Rule 36 should be
construed to apply only to a person who is the “ ” and who is
Head
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also the “ Chief Executive Officer ”. Otherwise the words “ referred in
subrule (1) ” appearing in clause (b) would become redundant.
20. The Division Bench of the High Court relied upon the full
Bench decision of the High Court in
National Education Society
(supra), to come to the conclusion that irrespective of whether the
Head of the Institute is also the Chief Executive Officer or not, Rule
36(2)(b) mandates the President to be a member of the Inquiry
Committee. A perusal of the Judgment of the Full Bench of the High
Court of Bombay in National Education Society (supra) shows
that the full Bench framed two questions for its consideration.
Question No.2 framed by the Full Bench reads as follows:
“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.”
21. The above question was taken up for consideration by the full
Bench in Paragraph 17 of its decision. In paragraphs 18 and 19, the
full Bench held as under:
“18. Rule 36(1)(a) of the Rules provides for constitution of
Inquiry Committee in respect of an employee while Rule
36(2)(b) provides for constitution of Inquiry Committee for
the Head. We have already quoted the definition of “Head” in
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terms of Section 2(9) of the Act. If it is held that there is no
requirement for the President of the management to be a
member of the Inquiry Committee in case of the Head who is
not the Chief Executive Officer, providing separate Inquiry
Committee for the Head in Rule 36(2)(b) would be nugatory.
In case such an interpretation is accepted Head of the school
would be an employee for the purposes of Rule 36(2)(a) and
there was no need to have separate constitution of Inquiry
Committee in terms of Section 36(2)(b). It is well settled that
the Legislature does not use any word unnecessarily. It
would be appropriate to quote paragraph 9 of the judgment
of the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v.
State of Orissa reported in MANU/SC/0077/1987 :
[1987]3SCR317. In para 9, the Apex Court observed as
under:
…Just as Parliament is not expected to
use unnecessary expressions, Parliament is also
not expected to express itself unnecessarily.
Even as Parliament does not use any word
without meaning something, Parliament does
not legislate where no legislation is called for.
Parliament cannot be assumed to legislate for
the sake of legislation; nor can it be assumed to
make pointless legislation. Parliament does not
indulge in legislation merely to state what it is
unnecessary to state or to do what is already
validly done. Parliament may not be assumed to
legislate unnecessarily….
19. We, therefore, hold that in case of Head whether or not
he is empowered to act as Chief Executive Officer, the
President of the management shall be a member of the
Inquiry Committee as contemplated by Rule 36(2)(b)(i) of the
Rules of 1981.”
22. As could be seen from the portion of the Judgment extracted
above, the full Bench was unduly carried away by the fact that the
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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 (supra), under
National Education Society
Rule 36(2)(b) may not be correct.
23. In any case, the High Court, in the impugned order, failed to
take the note of doctrine of necessity. Once it is admitted, that
(i)
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the disciplinary proceedings commenced with an Inquiry Committee
of which the President was a member; and ) that subsequently he
(ii
was replaced by someone due to ill health, the doctrine of necessity
would come into play. Hence the impugned orders of the High Court
and the School Tribunal are liable to be reversed. Since the School
Tribunal rejected all other contentions of respondent No.1, but
upheld only the contention revolving around Rule 36(2)(b), the
penalty of removal from service imposed upon the first respondent
is liable to be upheld. However, if by virtue of any interim order
passed by any forum, the respondent No.1 has been granted any
monetary benefit, the same shall not be recovered from him. The
appeal is accordingly allowed on the above terms and there shall be
no order as to costs.
……………………………….J.
(HEMANT GUPTA)
………………………………..J.
(V. RAMASUBRAMANIAN)
New Delhi
March 29, 2022
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