Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5607/2010
Kewalram s/o Tulshiram Kiranapure,
aged about 47 years,
Occupation: Service,
R/o At Post Armori, Tq. Armori,
New Bus Stand, Dist. Gadchiroli. .. PETITIONER
.. Versus ..
1. Manoharbhai Shikshan Prasarak Mandal,
Armori, through its President Armori,
Dist. Gadchiroli.
2. Manoharbhai Shikshan Prasarak Mandal,
Armori, through its Secretary
District Gadchiroli.
3. Mahatma Gandhi Junior College,
Armori, through its Principal, Armori,
Dist. Gadchiroli.
4. The Dy. Director of Education,
Nagpur Region, Nagpur. .. RESPONDENTS
Mr. A.D. Mohgaonkar, Advocate for Petitioner.
Mr. R.V. Gaikwad, Advocate for Respondents 1 to 3.
Mr. A.S. Sonare, AGP for Respondent no.4.
...
CORAM : B.P.DHARMADHIKARI &
P.D. KODE, JJ.
DATED : JUNE 13, 2011
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ORAL JUDGMENT (per B.P. Dharmadhikari, J.)
1. Heard.
2. Rule. By consent, Rule is made returnable forthwith and is
heard finally.
3. It is the contention that impugned order dated 20.11.2009
refusing to entertain appeal filed by the petitioner is erroneous. The
punishment imposed upon the petitioner is of withholding two increments
permanently denial of next time bound promotion and not to permit him to
function as internal or external examiner. The Deputy Director of
Education has informed the petitioner to approach School Tribunal in the
matter. Under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 ( referred to as “1977 Act”
hereinafter), the appeal to the School Tribunal is maintainable only against
the removal, dismissal, otherwise termination super session and reduction.
4. Rule 29 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 ( referred to as “1981 Rules”
hereinafter) framed under the 1977 Act contemplates an appeal to the
Deputy Director within a period of 45 days from the receipt of order of
punishment. In impugned order dated 20.11.2009 while refusing to
entertain appeal reason seems to be only if the punishment is of
withholding of an increment for a period not exceeding one year, the said
appeal can be preferred to respondent no.4.
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5. It is appropriate to look into the scheme of 1977 Act here. Its
S. 4 prescribes terms & conditions of service of employees of private
school. Subsection (1) authorises State Government to frame Rules
providing for minimum qualifications & procedure for recruitment, duties,
pay, allowances, post-retirement & other benefits, also other conditions of
service & reservation. Its subsection (2) enables State to prescribe code of
conduct and mode/manner of conducting disciplinary action for its
violation. S. 16 is the rule making power of the State Government which
again mentions these subjects or items. Sub-section(6) of Section 6
mandates that no employee of a private school can be suspended, dismissed
or removed or otherwise terminated or shall be reduced in rank by the
management except as per the provisions therein or in 1981 Rules framed
thereunder. Employee dismissed or removed or otherwise terminated ,
reduced in rank or superseded by the management has been given right
under S. 9 to appeal to a special tribunal called School Tribunal constituted
under S. 8 thereof. It is settled law that in these matters the jurisdiction of
civil court has been taken away. Judgment of Full Bench of this Court in
2007 (1) LJSOFT 10 = 2007 (1) Mh.L.J. 597-- St. Ulai High School &
another vs. Devendraprasad Jagannath Singh can be conveniently referred
for this purpose.
6. 1981 Rules contain provisions on various subjects stipulated in
S.6 & S. 16 of 1977 Act. Rule 1 is about short title while Rule 2 contains
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relevant definitions. From Rule 3 till Rule 21, it deals with qualification &
appointments/ promotions of Headmaster, Teachers & non-teaching staff,
their scales of pay & allowances, categories, service book, seniority, leave,
vacations, writing of their confidential reports, assessment of their work,
superannuation, re-employment, pension, provident fund, work-load etc.
Issues like resignations, transfer, contesting of an election are dealt with at
its end by Rules 40 to 43. For present purposes, it is important to note that
Rule 22 prescribes duties & code of conduct. Rule 23 regulates private
tuitions, Rule 24 lays down the mode & manner of making representation,
Rule 25A points out the mode & manner of termination when post is
abolished, Rule 26 regulates retrenchment when the posts are abolished &
Rule 27 lays down principles thereof. Removal or termination is taken care
of by Rule 28 & penalties which can be imposed on employee. It also
defines what is misconduct, moral turpitude, wilful & persistent negligence
of duty & incompetence. Rule 30 casts some obligation upon management
when it imposes punishment of withholding of increment. Punishments are
classified either as minor or major under Rule 31. Procedure for imposing
minor penalties is given under Rule 32 while Rule 33 is for major
penalties. Payment of subsistence allowance is under Rule 34 while
conditions of suspension are under Rule 35. Constitution of Inquiry
Committee and step by step procedure is then in Rules 36 & 37. Rule 38
restrains management from delegating to any subordinate authority except
chief executive officer power to execute the decision of inquiry committee
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about termination or reduction in rank. Rule 39 then elaborates procedure
for filing an appeal before the school tribunal.
7. Rule 29 reads-
“ Without prejudice to provisions of these rules, any
employee guilty of misconduct, moral turpitude,
wilful & persistent negligence of duty &
incompetence as specified in Rule 28 , shall be
liable for any of the following penalties,namely--
1. Warning, reprimand or censure.
2. Withholding of an increment for a period not
exceeding one year.
3. Recovery from pay or ----any pecuniary loss
------or breach of orders.
4. Reduction in rank.
5. Termination of service.
Provided that, an employee of a private school
aggrieved with decision of imposing a minor penalty
as specified in clause 1 of rule 31 may prefer an
appeal to the Deputy Director of the region
concerned within 45 days from the date of receipt of
the order of punishment ”.
Rule 31 reads:--
“ The penalties shall be classified into minor & major
penalties as under--
1. minor penalties:
(i) reprimand.
(ii) warning.
(iii)censure.
(iv)Withholding of an increment for a period
not exceeding one year.
(v) Recovery from pay or ----any pecuniary
loss ------or breach of orders.
2. major penalties:
(i)reduction in rank.
(iii)termination of service.
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Rule 30 reads:--
“Where an increment of an employee is withheld,
the authority imposing the punishment shall
specifically mention in its order--
(a) the period for which it is withheld,
and
(b)whether the period for which the
increment is withheld shall be exclusive of the leave
(except the casual leave) taken during the period ”.
Rule 32 lays down the procedure for imposing minor penalty which
contemplates an opportunity to employee to explain and determination of
nature & quantum of punishment as per that explanation.
8. The scheme of the 1977 Act & 1981 Rules therefore is provide
a complete code in the matter of discipline & conduct. The management
therefore can not travel beyond the procedure prescribed thereunder. The
relevant portion of the Rules highlighted above demonstrates that any of
the minor penalties can be inflicted upon the petitioner by respondent
management. Language thereof is very specific & it employs singular
number ie word used is “increment” and not “increments”. Use of prefix
“an” or verb “is” in conjunction with it also emphasizes this fact only.
Punishment of withholding only one increment is therefore envisaged by
these Rules. Against such minor penalty, an appeal is provided before the
Deputy Director. If it is major penalty, appeal is provided before tha School
Tribunal. Thus in disciplinary matters the 1977 Act & 1981 Rules contain a
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self sufficient & complete code. Hence, that “completeness” or nature can
not be allowed to be defeated by permitting the management to impose
some other adverse measure as punishment or to invent/use it as such. The
punishment order dated 23/3/2009 in present matter is in excess of powers
conferred upon the management by the law. By exercising powers not
vested in it, the respondent management can not be permitted to defeat this
statutory scheme. The employee like petitioner can not be left remedy-less
or then asked to approach civil court. The respondent 4 Deputy Director
has been given powers to interfere with any order of minor punishment as
an appellate authority. It can not be accepted that merely because the
management adopts some other measures not envisaged in 1981 Rules or
devises punishment not prescribed, his those powers are taken away.
Scheme above shows that law never restricted power of respondent 4 in
any manner so as to confine it to entertaining an appeal only against “legal
punishment” & denied it or expected him to loose that power in case of
such punishment not contemplated by it. Refusal of said respondent to
entertain the appeal is therefore unsustainable. Respondent 4 has to
examine the appeal on merits as an appellate authority to find out whether
there is any cause or conduct warranting the punishment & then its
proportion or legality. Here said respondent has refused to exercise that
jurisdiction. Advise by him to approach school tribunal is also contrary to
law. As respondent 4 has refused to entertain appeal of petitioner, it is
unnecessary for us to go into other challenges & the consideration on merit
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has to be left to him.
9. In this situation, impugned order dated 20.11.2009 is quashed
and set aside. The appeal filed by the petitioner with respondent no.4 is
restored back to file of respondent no.4 for its consideration on merit as per
law.
10. The petitioner and respondents 1 to 3 are directed to appear
before respondent no.4 on 6.7.2011 and respondent no.4 shall attempt to
decide the appeal on merits as early as possible and in any case by
30.8.2011.
11. Rule made absolute accordingly with no order as to costs.
JUDGE JUDGE
.........
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