M/S Shri. Vile Parle Kelavani Mandal And Ors vs Arun Raghunath Kadam

CNR No : HCBM010313342018

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Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8199 OF 2018
SAYALI
DEEPAK
UPASANI
1. M/s. Shri Vile Parle Kelavani Mandal,
a society registered under the Societies
Registration Act, 1860

2. M/s. Shri Vile Parle Kelavani Mandal’s Shri
Bhagubai Mafatlal Polytechnic, an
Educational Institutions having its Office at
Iral Juhu Road, Vile Parle (West),
Mumbai – 400056.
3. The Principal
M/s. Shri Vile Parle Kelavani Mandal’s Shri
M/s. Bhagubai Mafatlal Polytechnic, having
his Office at Irla Juhu Road, Vile Parle (West),
Mumbai – 400056.
...Petitioners
Digitally signed by
SAYALI DEEPAK
UPASANI
Date: 2026.10.22
17:33:18 +0530
Vs.
Arun Raghunath Kadam,
Adult, Mumbai, Indian Inhabitant
th
residing at Room No. 406, 4 Floor, Govind
Paradaise Type – B, Kargil Nagar, Taluka,
Vasai, Dist. Palghar.
… Respondent
Mr. Girish Godbole, Senior Advocate with Ms.
Aishwarya and Ms. Mamorama Mohanty and Ms.
Malika Mondal i/b SK Srivastav and Co., for the
Petitioner.
Mr. Pramod G. Kathane with Mr. Amol Ghurde, for the
Respondent.
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CORAM : AMIT BORKAR, J.
RESERVED ON : OCTOBER 19, 2026.
PRONOUNCED ON : OCTOBER 22, 2026
JUDGMENT:
1. By the present writ petition filed under Articles 226 and 227
of the Constitution of India, the Petitioners challenge the legality
and correctness of the Judgment and Order dated 27 April 2018
passed by the School Tribunal, Mumbai, in Appeal No. 20 of 2016.
2. The facts and circumstances which led to the filing of the
present writ petition, as stated by the Petitioners, are as follows.
On 8 March 1990, Respondent No. 1 was appointed as a
Hamal/Sweeper in the Polytechnic section on probation. His
appointment was confirmed on 29 March 1990. Thereafter, on 4
January 2007, he was promoted to the post of Junior Clerk.
According to the Petitioners, on 12 August 2011 and 1 October
2012, Respondent No. 1 unauthorisedly collected a total amount of
Rs. 51,000 from two scrap dealers. Out of this amount, Rs. 31,000
was collected from Nasim Khan and Rs. 20,000 from Irshad Ali. It
is alleged that Respondent No. 1 issued two false receipts in the
name of the Polytechnic, namely, Receipt No. 279 of 2011 dated 12
August 2011 to Nasim Khan and Receipt No. 40069 dated 1
October 2012 to Irshad Ali. The Petitioners alleged that
Respondent No. 1 collected these amounts by falsely assuring the
two scrap dealers that the motor machines lying in the Electrical
Department of the Polytechnic would be sold to them. The
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Petitioners stated that on 29 October 2012, when Respondent No.
1 was allegedly caught red-handed and questioned by the
Management, he admitted his guilt by a letter of the same date. A
show-cause notice was thereafter issued to him on 2 November
2012. The Petitioners referred to a letter dated 23 April 2012, by
which the discontinuance of the earlier proceedings was
communicated to Respondent No. 1. He was informed that the
show-cause notice and charge-sheet would be withdrawn and that
a fresh statement of allegations would be issued to him. The date
of this letter, as stated in the record, appears to require verification
in view of the subsequent events. On 16 January 2013, a charge-
sheet was issued to Respondent No. 1, to which he submitted his
reply on 25 February 2013. An enquiry committee was constituted
to enquire into the allegations made against him. However, the
Petitioners were subsequently advised that the constitution of the
enquiry committee was irregular. Acting upon that advice, the
Petitioners discontinued the charge-sheet dated 16 January 2013
and treated the two sittings of the domestic enquiry held as non-
est, that is, as having no legal effect.
3. Thereafter, a fresh statement of allegations was issued to
Respondent No. 1 on 19 December 2013. He submitted his reply to
the same on 2 January 2014. On 7 March 2014, he was placed
under suspension pending the domestic enquiry. The suspension
was subsequently revoked on 15 March 2014. A fresh charge-sheet
was issued to him on 7 May 2014. Thereafter, on 12 September
2014, an enquiry committee was constituted in accordance with
the provisions of the Maharashtra Employees of Private Schools
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(Conditions of Service) Regulation Act, 1977, and the Rules
framed thereunder. Upon an objection being raised by Respondent
No. 1, the committee was reconstituted with Harit S. Chitale,
Imtiaz Ul Haq and Juee A. Hadkar as its members. During the
enquiry, Rajan Chavan appeared as the representative of the
Management, whereas V. V. Verghese appeared as the Defence
Representative of Respondent No. 1. The Petitioners examined
Santosh P. Panchal in support of the charges, while Respondent No.
1 examined in defence. On 26 February 2015, two members of the
enquiry committee, namely, Harit S. Chitale and Juee A. Hadkar,
submitted separate reports finding Respondent No. 1 guilty and
recommending termination of his service. However, the third
member, Imtiaz Ul Haq, who represented the defence in the
enquiry committee, submitted a contrary finding and held
Respondent No. 1 not guilty of the charges. The reports submitted
by the members of the enquiry committee were forwarded to the
Management of the second Petitioner on 15 April 2015. The
reports were considered at the meeting of the Management held
on 18 April 2015. The Management accepted the majority view
holding Respondent No. 1 guilty and decided to terminate his
service. Accordingly, on 23 April 2015, the Chief Executive Officer
issued an order terminating his service. In the year 2016,
Respondent No. 1 challenged the termination order before the
School Tribunal, Mumbai, by filing Appeal No. 20 of 2016 under
Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977. The Petitioners, who
were the respondents before the School Tribunal, filed their
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written statement opposing the appeal on 26 October 2016.
4. By the impugned Judgment and Order dated 27 April 2018,
the School Tribunal held that the enquiry conducted by the
Management was not in accordance with the provisions of the
MEPS Act and the Rules framed thereunder. The Tribunal
accordingly quashed and set aside the termination order. It
directed the Petitioners to reinstate Respondent No. 1 in his former
post of Junior Clerk and to pay him 75% of the back wages from
24 April 2013. The present writ petition was thereafter admitted
on 7 December 2018. Being aggrieved by the decision of the
School Tribunal, the Petitioners have approached this Court.
5. Mr. Godbole, learned Senior Advocate appearing for the
Petitioners, submitted that the suspension of Respondent No. 1
was revoked on 15 July 2014 and that a fresh charge-sheet had
been issued on 7 May 2014. He contended that even if there was
any non-compliance with Rule 37-B of the Rules, such non-
compliance had not caused any prejudice to Respondent No. 1. In
support of this submission, he relied upon the judgment of the
Supreme Court in State Bank of Patiala and Others v. S. K. Sharma,
(1996) 3 SCC 364 .
6. Mr. Godbole submitted that the charge against Respondent
No. 1 was one of misappropriation. According to him, the
Management had produced two receipts issued to the scrap dealers
in support of the charge. He relied upon the letter written by
Respondent No. 1, which was marked at Exhibit 20. According to
the Petitioners, the letter was written in Respondent No. 1's own
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handwriting and contained his admission that he had accepted
money in connection with scrap material lying in the college
premises.
7. Mr. Godbole pointed out that, in the said letter addressed to
the Management, Respondent No. 1 had stated that he was
required to return the amount received by him. He had stated that
the scrap dealers had disclosed the incident to other persons.
According to the Petitioners, Respondent No. 1 had accepted
responsibility for his conduct, undertaken not to repeat such acts
in future and requested the Management to forgive him for the
misconduct.
8. Learned Senior Advocate submitted that the School Tribunal
rejected this letter only on the ground that it had been obtained by
force and coercion. He contended that Respondent No. 1 had not
made any specific pleading in his appeal alleging that the
Management had used force or coercion when the letter was
written or obtained. Therefore, according to him, the Tribunal was
not justified in discarding the letter on that ground.
9. Mr. Godbole then invited the Court's attention to the reports
submitted by the two members of the enquiry committee who had
found Respondent No. 1 guilty. He submitted that both reports
were signed on 26 February 2015 and that the findings recorded
by those members supported the decision taken by the
Management to terminate the service of Respondent No. 1.
10. Learned Senior Advocate referred to the cross-examination
of Respondent No. 1. He pointed out that, in response to Question
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No. 1, Respondent No. 1 admitted that he had submitted the letter
dated 25 February 2013 to the Convener of the enquiry committee.
He had admitted that the contents of that letter were true and
correct. According to Mr. Godbole, this admission supported the
Petitioners' case regarding the correctness of the material relied
upon by the Management.
11. Mr. Godbole submitted that Respondent No. 1 had admitted,
in response to Question No. 1, that the last two lines of the said
letter, stating that he had written the letter on his own, were
correct. He invited the Court's attention to other answers given by
Respondent No. 1 during cross-examination, in which he had
admitted the existence of the receipts issued to the scrap dealers
and the letter addressed to the Management accepting the alleged
misconduct. On the basis of these admissions, Mr. Godbole
contended that the School Tribunal had wrongly re-examined the
evidence and applied standards similar to those followed in a
criminal trial while deciding whether the misconduct had been
proved. According to him, the Tribunal ought to have considered
the evidence in the domestic enquiry in accordance with the
principles applicable to disciplinary proceedings and ought not to
have interfered with the findings recorded by the enquiry
committee and accepted by the Management.
12. On the other hand, Mr. Pramod Kathane, learned Advocate
appearing for Respondent No. 1, submitted that the first enquiry
had been dropped and that the enquiry which ultimately resulted
in the termination order was the third enquiry initiated against
Respondent No. 1. He contended that, although the earlier two
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enquiries had not been completed, repeated initiation of enquiry
proceedings had caused delay and prejudice to Respondent No. 1.
Learned Advocate submitted that, after the members of the
enquiry committee submitted their respective reports, Respondent
No. 1 was not given an opportunity to respond to those reports
before the Management took its decision. He fairly accepted that
there was no specific pleading alleging that the letter at Exhibit 20
had been obtained by force or coercion. However, he submitted
that the absence of such a pleading did not resolve the other
defects in the enquiry proceedings. Mr. Kathane contended that the
enquiry was vitiated by non-compliance with Rule 37(b) of the
Rules. He then referred to the cross-examination of the
Management witness, who had admitted that scrap material was
lying in the college premises. Relying upon this admission, he
supported the finding recorded by the School Tribunal in
paragraph 31 of its judgment that the scrap material had not been
removed from the institution. Learned Advocate relied upon the
admission of the Management witness that he did not know who
had prepared the receipts marked at Exhibits 17 and 18. The
witness had admitted that these receipts were not the counterfoils
of the receipts contained in the receipt book produced at Exhibit
21. According to Mr. Kathane, these admissions raised doubts
about the authenticity and evidentiary value of the receipts relied
upon by the Management.
13. Mr. Kathane, therefore, submitted that the testimony of the
Management witness could not be relied upon to establish the
charges against Respondent No. 1. He contended that the witness
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had no personal knowledge of the material facts relating to the
alleged preparation of false receipts or the alleged involvement of
Respondent No. 1 in the transaction with the scrap dealers. In the
absence of reliable evidence establishing these allegations, he
submitted that the School Tribunal had rightly interfered with the
termination order and that no ground was made out for this Court
to interfere with the impugned Judgment and Order in its writ
jurisdiction.
Reasons and Findings
14. The main question which is required to be considered is
whether the School Tribunal was right in holding that the domestic
enquiry was not held as per the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977 and the
Rules made under it. It is required to be seen whether the relief
granted by the Tribunal can be allowed to remain as it is.
15. Respondent No. 1 was appointed as a Hamal/Sweeper in the
Polytechnic section on probation on 8 March 1990. His
appointment was confirmed on 29 March 1990. Thereafter, on 4
January 2007, he was promoted to the post of Junior Clerk. The
allegations against him are relating to a transaction with two scrap
dealers, namely Nasim Khan and Irshad Ali. According to the
Management, Respondent No. 1 took Rs. 31,000 from Nasim Khan
and Rs. 20,000 from Irshad Ali, making the total amount of Rs.
51,000. It was alleged that he took this amount by telling them
that the motor machines lying in the Electrical Department of the
Polytechnic would be sold to them. The Management alleged that
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he gave false receipts in the name of the Polytechnic. These
receipts were produced during the enquiry and marked as Exhibits
17 and 18. The record shows that a show-cause notice was issued
to Respondent No. 1 on 2 November 2012. Thereafter, a charge-
sheet was issued on 16 January 2013 and Respondent No. 1 gave
his reply on 25 February 2013. The Management later stopped that
enquiry because the enquiry committee was not constituted. The
proceedings which had taken place were treated as non-est, which
means that they were not to be considered as valid proceedings.
Thereafter, a fresh statement of allegations was issued on 19
December 2013 and another charge-sheet was issued on 7 May
2014. The enquiry started on 19 July 2014 and ended on 20
November 2014. On 26 February 2015, two members of the
enquiry committee, namely Harit S. Chitale and Juee A. Hadkar,
separately held Respondent No. 1 guilty and recommended
termination of his service. The third member, Imtiaz Ul Haq, did
not agree with them and held Respondent No. 1 not guilty. The
reports were sent to the Management on 15 April 2015. The
Management accepted the view of the majority members and
terminated the service of Respondent No. 1 on 23 April 2015.
16. The submissions made by both sides are required to be
considered in the light of the procedure which the law has
provided for holding disciplinary enquiries against employees of
private schools. The question is not only whether the Management
had suspicion against Respondent No. 1 or whether some
circumstances created suspicion about him. It is necessary to see
whether the enquiry was held according to the procedure provided
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under the Rules and whether the material on record supports a
finding on the charges which can be accepted. It is necessary to
consider the alleged defects in following the procedure and
whether the School Tribunal was right in interfering with the
findings of the enquiry committee.
17. Rule 37 provides the procedure which is required to be
followed while holding an enquiry. Rule 37(2)(c) provides that
“The Inquiry Committee shall see that every reasonable
opportunity is extended to the employee for defence of his case.”
Rule 37(2)(d)(ii) provides that “The employee shall have the right
to be heard in person and lead evidence. He shall have the right to
cross-examine the witnesses examined on behalf of the
Management.” From these provisions, it is clear that the employee
must get a proper opportunity to understand the charges and put
forward his defence. This opportunity must be real and effective.
Merely because the employee attended the enquiry or was allowed
to ask questions to a witness, it cannot be said that the Rules have
been followed. The employee must get an actual opportunity to
place his defence. Rule 37(4) requires the Convener to forward to
the employee “a summary of the proceedings and copies of
statements of witnesses, if any,” within four days after completion
of the prescribed steps. Thereafter, the employee is required to be
given seven days to submit his explanation. Under Rule 37(5), the
employee has to give that explanation within seven days from the
date on which he receives the summary and statements. After this,
Rule 37(6) requires the enquiry committee to complete the enquiry
and communicate its findings and decision to the Management
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“within ten days after the date fixed for receipt of explanation.” A
copy of the findings and decision is required to be sent to the
employee and the concerned Education Officer or Deputy Director.
After receiving the decision, the Management is required to issue
the necessary order within seven days. The time limits given under
Rule 37 form part of the procedure which the Management and
the enquiry committee are required to follow. These requirements
cannot be ignored only because the Management believes that the
employee has committed misconduct. At the same time, every
failure to follow a procedural requirement does not automatically
make the whole enquiry invalid. It is necessary to see what type of
requirement was not followed, why it was provided and what
effect its breach has caused. This principle has been explained by
the Supreme Court in State Bank of Patiala and Others .
18. In paragraph 33(1), the Supreme Court observed that an
order of punishment passed in violation of the applicable rules
“should not be set aside automatically.” The Court or Tribunal has
to examine whether the provision which was not followed is
substantive or procedural. Paragraph 33(2) makes it clear that a
substantive provision must ordinarily be followed and that “the
theory of substantial compliance or the test of prejudice would not
be applicable in such a case.” In paragraph 33(3), the Supreme
Court explained that where there is a procedural violation, the
Court must ordinarily consider whether the employee suffered
prejudice in and effectively defending. The Court recognised that
some procedural requirements are of a basic nature and that their
violation itself may show prejudice. Paragraph 33(6) states that
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the main object of natural justice is “to ensure a fair hearing and to
ensure that there is no failure of justice.” Therefore, the Petitioners
are right to the extent that a small or harmless mistake in
procedure does not make the disciplinary enquiry invalid.
However, this does not mean that a mandatory procedure given
under the Rules can be ignored. The Court must first find out what
kind of requirement was not followed and to what extent it was
not followed. Only thereafter can it decide whether the test of
prejudice applies and whether the breach can be treated as
harmless.
19. In the present case, one important defect relates to the
manner in which the enquiry committee prepared and sent its
findings. The record shows that the enquiry proceedings ended on
20 November 2014. The minutes of that date state that the
Management Representative had completed the cross-examination
of Respondent No. 1, that no re-examination was asked for and
that the witness was discharged. The minutes state that the
committee would submit its reports and findings later. The
majority reports were dated 26 February 2015 and were sent to
the Management on 15 April 2015. Thus, a considerable time
passed after the evidence was completed before the reports were
sent to the Management. This delay is required to be considered
along with the requirements of Rule 37(4), (5) and (6). The
material placed before the Court does not show that the summary
of the proceedings and the statements of witnesses were sent to
Respondent No. 1 in the manner provided by the Rules. It does not
show that he was thereafter given the required seven days to
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submit his explanation. The record does not explain why the
members prepared separate reports instead of submitting one
combined report of the enquiry committee. These are important
omissions because the Management is relying upon the validity of
this very enquiry to support the termination of Respondent No. 1.
20. There is one more difficulty in the matter. Two members of
the enquiry committee separately held Respondent No. 1 guilty,
whereas the third member separately held him not guilty. The
Management accepted the opinion of the majority members.
However, the fact that two members agreed with each other does
not answer the question whether the reports were prepared and
submitted according to the Rules. A majority decision cannot
remove a breach of a mandatory procedure which governs the
working of the enquiry committee. This issue is covered by the
judgment of the Supreme Court in Vidya Vikas Mandal and
Another v. The Education Officer and Another, (2007) 11 SCC 352 ,
reported in 2007 (2) ALL MR 461 (SC). The Supreme Court
considered Rule 37(6) and held that the requirement under that
provision was mandatory. It held that reports separately submitted
by individual members, instead of one combined report of the
three-member committee, were not according to the Rules. The
Supreme Court observed that “all the three should submit their
combined report whether consenting or otherwise.” The Supreme
Court set aside the termination order and the orders granting
reinstatement and back wages. The Management was directed to
constitute a committee under Rule 36(2)(a) to consider the matter
afresh. The principle laid down in Vidya Vikas Mandal applies to
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the present case. The reports sent to the Management were
separate reports and the Management relied upon the two reports
which held Respondent No. 1 guilty. The statutory requirement
cannot be considered as fulfilled only because two out of three
members agreed on the result. Rule 37(6) requires the enquiry
committee to communicate its findings and decision. The Supreme
Court has made it clear that the committee must submit a
combined report, whether all members agree or some members do
not agree. Therefore, the findings relied upon by the Management
cannot be treated as a valid report prepared according to Rule 37.
21. The Petitioners rely upon State Bank of Patiala and submit
that Respondent No. 1 has not shown that he suffered any actual
prejudice. However, this submission does not remove the defect in
the enquiry. The present case is not only about a small mistake in
recording the proceedings or a short delay which had no effect on
the enquiry. The reports were prepared separately, the majority
findings were sent after a considerable period and the record does
not establish that the procedure requiring the employee to submit
his explanation before the findings were completed was followed.
These requirements are safeguards given by the Rules to an
employee. Their breach cannot be ignored only because
Respondent No. 1 took part in the evidence and cross-examined
the witness.
22. The submission of Respondent No. 1 that he was entitled to
reply to the completed reports requires some clarification. Rule
37(4) and (5) provide for a explanation after the employee
receives the summary of the proceedings and the statements of
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witnesses. Rule 37(6) thereafter requires the committee to
complete the enquiry and send its findings and decision, including
a copy to the employee. The Rules do not provide for a separate
second hearing only to answer the findings before the
Management takes action. Therefore, the absence of such a second
hearing would not be enough to make the proceedings invalid. The
main defect in the present case is that the record does not show
that the prescribed steps leading to the report were followed. This
is apart from the separate reports and the delay in sending them.
The fact that two earlier enquiries were discontinued is required to
be considered. Respondent No. 1 submitted that the present
enquiry was the third enquiry started against him and that the
repeated proceedings caused prejudice to him. The record shows
that the earlier charge-sheet dated 16 January 2013 was
discontinued because the enquiry committee was not constituted.
The proceedings which had taken place were treated as non-est.
Those proceedings cannot be treated as a valid finding of guilt
against Respondent No. 1. At the same time, the fact that those
proceedings were discontinued does not prevent the Management
from holding a lawful enquiry into the charges, provided the later
enquiry follows the Act and Rules. However, the earlier
proceedings are relevant while considering the delay and ensuring
that the matter is not kept pending without any end. The dates on
record show that the fresh charge-sheet was issued on 7 May 2014,
whereas the suspension was revoked on 15 July 2014. Therefore,
the submission that the fresh charge-sheet was issued after the
suspension was revoked is not supported by the dates, because the
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charge-sheet was issued first. This inconsistency does not decide
whether the enquiry was valid. However, it does not support the
Petitioners' submission that the sequence of events necessarily
followed the Rules.
23. The next question is whether the School Tribunal was right
in holding that the findings of the two members were perverse.
The Tribunal considered the evidence of Santosh P. Panchal, the
Management witness, and the answers given by Respondent No. 1
during cross-examination. It recorded that the witness did not
know who had prepared the receipts marked as Exhibits 17 and
18. He admitted that those receipts were not the counterfoils of
the receipts contained in the receipt book produced at Exhibit 21.
The original receipts were not produced through him, though he
stated that he had seen them. The Tribunal recorded that the scrap
material had not been removed from the institution and that the
witness did not have personal knowledge about the main part of
the charge, namely, that Respondent No. 1 had allegedly received
Rs. 51,000 and prepared false receipts. These circumstances were
relevant to the charge against Respondent No. 1. The allegation
was not only that Respondent No. 1 had met the scrap dealers or
that some dispute had taken place regarding the scrap material.
The main allegation was that he had taken Rs. 51,000 by falsely
telling the dealers that the motor machines would be sold to them
and had given false receipts in the name of the Polytechnic.
Therefore, evidence showing that he had received the money and
was connected with preparing the receipts was important. The fact
that the scrap material continued to remain in the institution did
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not disprove the charge. However, uncertainty about where the
receipts came from, the absence of their original counterfoils and
the Management witness not having direct knowledge were
circumstances which required proper consideration before holding
Respondent No. 1 guilty.
24. The Petitioners rely upon Exhibit 20, the letter dated 29
October 2012, and the cross-examination of Respondent No. 1.
The record of cross-examination shows that Respondent No. 1
admitted that the letter was in his handwriting and that he had
signed it. He accepted that the contents of its first paragraph were
true and correct. He admitted that he had met Nasim Khan and
Irshad Ali on 20 October 2012 and had gone with them to meet
Panchal. In answer to Question No. 17, he admitted that he was
present when the receipt was shown to Panchal. He admitted that
he had not made any police complaint alleging that the
Management had forced him to write Exhibit 20. These admissions
show that Respondent No. 1 knew about the dispute relating to the
receipts and was present when a receipt was shown to Panchal. His
failure to make a police complaint makes his later claim that the
letter was obtained by force less convincing. However, these
circumstances do not automatically prove every part of the charge.
Respondent No. 1 denied that he had voluntarily accepted the
allegations concerning the receipts. He stated that the money had
been taken by Farukh, whom he described as the middleman in the
scrap transaction. He referred to declarations from Nasim Khan
and Irshad Ali, which, according to him, were given after the
dispute was settled. Whether these declarations were genuine or
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were later obtained to support his defence was required to be
considered along with the other evidence.
25. The finding of the School Tribunal that Exhibit 20 was
obtained under pressure is required to be examined carefully.
There was no specific statement in the appeal that force or
pressure had been used when the letter was written. Respondent
No. 1 admitted that the letter was in his handwriting and that he
had signed it. These facts make it difficult to hold that the letter
was obtained by force only from the way its last lines were written
or arranged. The absence of a police complaint is a relevant
circumstance, though it cannot decide the issue. The proper way
was to examine the complete letter, what was written in it, the
circumstances in which it was written and the answers given
during cross-examination. The whole letter could not be rejected
only because Respondent No. 1 later denied that he had written it
voluntarily. At the same time, the letter cannot be treated as a
complete admission of every allegation in the charge-sheet without
seeing what it states. The admitted portion refers to the meeting
and the complaint made by the scrap dealers. The answers given
by Respondent No. 1 show that he knew about the dispute and had
taken the dealers to Panchal. However, his defence was that Farukh
had received the money. Whether Exhibit 20 contains an admission
that Respondent No. 1 received the entire amount of Rs. 51,000
and prepared the disputed receipts must be decided by reading the
actual words of the letter along with the other evidence. Just
because the letter is in the employee's handwriting, it does not
mean that he has admitted every allegation. In the same way, his
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later denial does not make the letter irrelevant.
26. The School Tribunal was justified in examining the
weaknesses in the evidence relied upon by the majority members.
However, the standard of proof in a domestic enquiry is different
from the standard of proof in a criminal trial. The Management
was not required to prove the charges beyond reasonable doubt or
to produce evidence in exactly the same manner as would be
required to prove forgery before a criminal court. The charges
could be established on the basis of reliable material which, when
considered as a whole, reasonably supported the conclusion that
misconduct had taken place. The Tribunal was required to apply
this standard while deciding whether the findings of the majority
members were supported by the evidence.
27. In the present case, some circumstances support the
suspicion of the Management, particularly the letter and the
admitted meeting with the scrap dealers. At the same time, there
are gaps in proving the exact charge. These include the absence of
direct evidence from the two scrap dealers, uncertainty about who
prepared the receipts and the lack of a clear connection between
the receipts and the actual receipt of money by Respondent No. 1.
It would not be proper for this Court, while exercising writ
jurisdiction, to record a finding of guilt only because some answers
given by Respondent No. 1 make his defence weaker. In the same
way, it cannot be held that the charges have been fully disproved
only because the third member of the enquiry committee found
him not guilty. The evidence and documents must be considered in
an enquiry which is conducted according to the statutory
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procedure.
28. The Petitioners are right to a limited extent that the School
Tribunal could not reject the letter and the admissions only by
applying the standard used in a criminal trial. Respondent No. 1 is
right in pointing out that there are gaps in the receipts and the
evidence of Panchal which require proper consideration. It is not
necessary for this Court to hold that every finding given by the
School Tribunal on the evidence was correct in all respects. The
important point is that the termination was based on findings
which were not prepared and communicated according to the
mandatory requirements of Rule 37. These defects cannot be
corrected only because two members agreed with each other or
because Respondent No. 1 participated in cross-examination.
29. The School Tribunal held that no fresh enquiry could be
allowed because the Management had conducted an enquiry and
had failed to establish the charges. To this extent, its order requires
to be changed. In Vidya Vikas Mandal , the Supreme Court
considered the result of not following Rule 37(6). The Supreme
Court did not hold that the employee must be treated as cleared of
the charges only because the reports of the enquiry committee
were invalid. Instead, it set aside the termination order and the
orders granting reinstatement and back wages, and directed the
Management to constitute a committee under Rule 36(2)(a) to
consider the matter afresh. This decision shows that when the
statutory procedure for submitting the enquiry findings has not
been followed, a fresh committee may be required to consider the
matter according to the Rules.
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30. The present case is different from a case where the employer
has held a valid enquiry, failed to prove the charge and then seeks
another opportunity only to fill up the gaps in the evidence. Here,
the main defect relates to the working and reporting process of the
enquiry committee and the failure to follow the mandatory
requirements for giving the findings. The fact that two earlier
enquiries were discontinued is a matter of concern. Therefore, any
fresh proceedings must be completed without any unnecessary
delay. However, those earlier proceedings were treated as non-est
and did not result in a decision on the charges. In view of the
decision of the Supreme Court, the matter is required to be
considered afresh by a constituted enquiry committee, instead of
treating the defective reports as a decision either of guilt or
innocence.
31. Any fresh enquiry must remain limited to the charges
lawfully framed against Respondent No. 1 concerning the alleged
collection of Rs. 51,000 and the disputed receipts. The
Management cannot use the fresh proceedings to bring in
unrelated allegations or to treat the earlier defective reports as
proof of guilt. The new committee must consider the relevant
material independently, give both sides the opportunity required
under Rule 37, record the proceedings and provide the summary
and statements in the manner given by the Rules. It must allow the
explanation required under Rule 37(4) and (5), and submit a
combined report and decision according to Rule 37(6). The
committee must fairly consider the explanation and objections of
Respondent No. 1. Its report must give reasons showing how the
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evidence supports each material charge.
32. The direction to pay 75% back wages from 24 April 2013
cannot continue. The termination order under challenge was
passed on 23 April 2015. The material placed before this Court
does not explain why back wages were directed from 24 April
2013, which is nearly two years before the termination order. The
School Tribunal could not direct payment of back wages for a
period without considering whether Respondent No. 1 had
received salary during that period or whether he had otherwise
been kept out of service. Further, as the matter is required to be
considered afresh according to the mandatory procedure, the
question of reinstatement, back wages and other service benefits
must depend upon the result of the fresh enquiry and the
applicable Rules. Therefore, the direction granting 75% back
wages from the date mentioned in the impugned order cannot be
maintained.
33. In view of the above discussion, the writ petition deserves to
be partly allowed. The finding that the enquiry proceedings and
reports did not follow Rule 37 is upheld. The termination order
dated 23 April 2015 cannot stand on the basis of reports which
were not prepared and communicated according to the mandatory
procedure. However, the directions of the School Tribunal granting
reinstatement with continuity of service and 75% back wages, and
refusing to allow a fresh enquiry, are set aside. The matter shall be
considered afresh by a committee constituted according to Rule
36(2)(a) of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981. The enquiry shall be
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completed according to Rule 37 within six months from the date
on which the committee is constituted.
34. During the fresh enquiry, Respondent No. 1 shall be entitled
to subsistence allowance and such treatment in relation to his
service as is permitted under the Act and Rules. The Management
shall not recover salary paid for the work performed only because
the earlier termination order is set aside or the matter is sent back
for fresh consideration. The new committee must decide the
charges independently. It shall not treat either the earlier majority
report or the minority report as binding upon it. Its findings must
be based on the material brought on record and the explanation
given by Respondent No. 1.
35. In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
(i) The writ petition is partly allowed.
(ii) The finding of the School Tribunal that the
enquiry proceedings were not conducted in
accordance with Rule 37 of the Maharashtra
Employees of Private Schools (Conditions of
Service) Rules, 1981, is upheld.
(iii) The termination order dated 23 April 2015 is
set aside.
(iv) The directions issued by the School Tribunal for
reinstatement with continuity of service and
payment of 75% back wages are set aside.
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(v) Respondent No.1 shall be reinstated in service
as Assistant Teacher, only for the purpose of
enabling the disciplinary proceedings to be
completed in accordance with law. Such
reinstatement shall not be treated as a finding of
exoneration from the charges levelled against him.
(vi) The Management shall constitute a fresh
Inquiry Committee in accordance with Rule 36(2)
(a) of the Rules and complete the enquiry in
accordance with Rule 37 within six months from the
date of constitution of the Committee.
(vii) The fresh Inquiry Committee shall
independently consider the charges and the
material on record, after giving Respondent No. 1 a
reasonable opportunity to defend in accordance
with the Rules.
(viii) The question of consequential service benefits
and back wages shall abide by the outcome of the
fresh enquiry and the applicable provisions of law.
(ix) There shall be no order as to costs.
(AMIT BORKAR, J.)
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