Lokmanya Shikshan Santha And Anr vs Mr. Pratap Shankarao And Ors
- Court
- Bombay High Court
CNR No : HCBM010251302018
2026:BHC-AS:43651
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6162 OF 2018
1. Lokmanya Shikshan Sanstha,
through its President / Secretary
2. Lokmanya Vidya Mandir High School
through it’s Headmaster
… Petitioners
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL
GANESH
KULKARNI
Date: 2026.10.27
16:14:10 +0530
Vs.
1. Pratap Shankarao Tambe
2. The Education Inspector, Brihanmumbai
North Zone, Chembur, Mumbai
3. The Deputy Director of Education
Mumbai Region, Mumbai
4. Director of Education, Directorate of
Secondary and Higher Secondary
5. The State of Maharashtra
… Respondents
Mr. R.V. Govilkar, Senior Advocate with Ms. Sanika
Kulkarni, Mr. Jitendra M. Pathade, and Ms. Priyanka
Singh for the Petitioners.
Mr. Sugandh Deshmukh with Mr. Aniket Konawade,
and Mr. Vaibhav Thorave i/by Mr. Irvin D’Souza for
Respondent No.1.
Ms. Vaishali Nimbalkar, AGP for Respondent Nos.2 and
3.
CORAM : AMIT BORKAR, J.
RESERVED ON : OCTOBER 19, 2026
PRONOUNCED ON : OCTOBER 27, 2026
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JUDGMENT:
1. By the present Writ Petition filed under Articles 226 and 227
of the Constitution of India, the Petitioners challenge the legality,
validity and propriety of the order dated 13 April 2018 passed by
the learned School Tribunal in Appeal No. 27 of 2016.
2. According to the Petitioners, during the last week of
December 2011 and again on 7 July 2012, Respondent No. 1
molested a girl student, namely, Miss Ujwala Bhimrao Kamble,
thereby outraging her modesty. Consequently, on 3 August 2012,
First Information Report bearing C.R. No. 252 of 2012 came to be
registered against Respondent No. 1 for the offences punishable
under Sections 354 and 506 of the Indian Penal Code. On 24
August 2012, a show cause notice was issued to Respondent No. 1.
Thereafter, Respondent No. 1 was placed under suspension with
effect from 1 November 2012. During the period of suspension, he
was paid the admissible subsistence allowance in accordance with
the applicable Rules. On 1 March 2013, the Enquiry Committee
submitted its report and imposed the penalties of denial of
promotion to the post of Headmaster and withholding of one
increment for a period of one year, with effect from 14 March
2013, subject to the applicable procedure and approval of
Respondent No. 3. On 18 November 2014, minutes of the meeting
and an order came to be passed by Respondent No. 3. Thereafter,
Respondent No. 1 filed Civil Writ Petition No. 190 of 2015 before
this Court, seeking quashing and setting aside of the order dated
11 March 2015. On 28 August 2015, Respondent No. 3 quashed
and set aside the report dated 1 March 2013 submitted by the
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Enquiry Committee. The Petitioners contend that the said decision
was erroneous. On 15 September 2015, the Petitioners sought
permission to conduct a fresh enquiry on the grounds that the
objections raised by Ashwini Chavan had not been recorded, the
relevant papers and proceedings had not been duly considered,
and the seriousness of the allegations and the past conduct of
Respondent No. 1 had not received adequate consideration. On 29
September 2015, Respondent No. 3, after considering the
proceedings and the evidence available on record, is stated to have
applied its mind to the allegations against Respondent No. 1. The
allegations included molestation of a minor girl student,
misbehaviour with girl students within the school premises and
misbehaviour with female teachers. Upon consideration of the
statements of the girl students and the other material available,
Respondent No. 3 took the view that the conduct of Respondent
No. 1 was not suitable for a person holding the post of a teacher.
Thereafter, on 28 December 2015, upon obtaining the requisite
permission from Respondent No. 3, the Petitioners issued a
statement of allegations to Respondent No. 1 and called upon him
to submit his explanation. Following the fresh enquiry, the Enquiry
Committee submitted its report and concluded that Respondent
No. 1 was liable to face major penalties, having regard to the
serious allegations concerning the alleged molestation of a minor
girl student. Consequently, by order dated 21 September 2016, the
Petitioners terminated the services of Respondent No. 1.
3. Respondent No. 1 challenged the order of termination dated
21 September 2016 before the learned School Tribunal, Mumbai
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Region, by filing Appeal No. 27 of 2016. By the impugned order
dated 13 April 2018, the learned School Tribunal partly allowed
the appeal. The Tribunal set aside the termination order dated 21
September 2016 issued by Petitioner No. 1, which had been passed
following the fresh enquiry stated to have been initiated on the
basis of a letter dated 28 September 2015 issued by Respondent
No. 4. The Tribunal directed the Petitioners to reinstate
Respondent No. 1 to his former post within sixty days from the
date of the order and to pay him 75% of the back wages from the
date of termination. The Petitioners contend that the impugned
order has been passed without proper consideration of the
material facts, the evidence on record and the circumstances in
which the fresh enquiry came to be initiated.
4. Mr. Govilkar, learned Senior Advocate appearing on behalf of
the Petitioners, submits that Respondent No. 1 was accused of
having committed the serious misconduct of molesting a minor girl
student on more than one occasion. According to him, during the
first enquiry, the victim girl was suffering from mental trauma and
was not in a position to depose before the first Enquiry Committee.
Upon becoming aware of the victim's mental condition and the
difficulties faced by her in giving her statement, the Petitioners
decided to seek the necessary permission from the concerned
authorities, namely, Respondent Nos. 3 and 4. After obtaining the
requisite permission from Respondent No. 3, the Petitioners
initiated a fresh enquiry, taking into consideration the mental
trauma suffered by the minor victim at the time of the first enquiry.
Learned Senior Advocate submits that this important circumstance
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was not considered by the learned School Tribunal while deciding
the appeal. He submits that, although the initiation of a second
enquiry may be alleged to amount to double jeopardy, the
Petitioners' specific case is that the fresh enquiry was undertaken
only after obtaining permission from the office of Respondent No.
3. The permission was sought and granted in view of the
seriousness of the charges levelled against Respondent No. 1 and
his alleged past conduct. According to the Petitioners, the fresh
enquiry was therefore initiated in accordance with the applicable
legal provisions and not with the intention of subjecting
Respondent No. 1 to an impermissible second punishment.
5. Learned Senior Advocate submits that the Petitioners acted
in accordance with Section 4-A of the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977
(MEPS Act), having regard to the serious allegations of misconduct
and misbehaviour against Respondent No. 1. According to the
Petitioners, the first Enquiry Committee had unreasonably
exonerated Respondent No. 1, despite the seriousness of the
allegations. The Petitioners contend that, upon consideration of
additional evidence, including the statements of the victim and
other witnesses, it became necessary to examine whether the
charges of serious misconduct and misbehaviour involving moral
turpitude stood established. It is their case that permission was
accordingly granted to initiate an appropriate enquiry in
accordance with law. Learned Senior Advocate submits that the
learned School Tribunal failed to apply its mind to the detailed
statement of the victim girl and the statements of the additional
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witnesses. According to him, these materials were relevant for
determining whether the circumstances justified the initiation of a
fresh enquiry. He submits that no letter dated 28 September 2015
issued by Respondent No. 3 forms part of the record. Nevertheless,
the learned School Tribunal proceeded on the basis of the said
letter and relied upon it while deciding the appeal. The Petitioners
contend that the impugned order suffers from an error apparent in
its consideration of the record, as the Tribunal relied upon a
document which was not available on record.
6. Mr. Deshmukh, learned Advocate appearing for Respondent
No. 1, invited my attention to Section 4-A of the MEPS Act. He
submitted that this provision gives the Director of Education the
power to conduct a disciplinary enquiry and that this power
cannot be delegated to any other person. He submitted that the
charge-sheet issued in the first enquiry contained nine charges
relating to the alleged conduct of Respondent No. 1 towards a
female student. Those charges were held to be not proved.
However, after considering the complaints made by the
Headmaster against Respondent No. 1, including the complaint
made by Assistant Teacher Sulakshana Chavan, a punishment of
stoppage of one increment for one year was imposed upon
Respondent No. 1. According to learned Advocate, the charges in
the second enquiry were the same as those in the first enquiry. The
only difference was Charge No. 8 in the second enquiry, which
related to former teacher Sulakshana Chavan. This matter had
been considered while imposing the punishment of stoppage of
increment upon Respondent No. 1.
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7. Mr. Deshmukh then invited my attention to the findings
recorded by the learned School Tribunal. He submitted that the
Tribunal rightly held that, once Respondent No. 1 had been found
guilty of certain charges and punishment had been imposed upon
him, the Management could not start a fresh enquiry on the same
cause of action merely because the earlier punishment was
subsequently set aside. He submitted that the seriousness of the
charges and allegations against Respondent No. 1 could not, ,
justify the initiation of another enquiry. The Tribunal had rightly
held that, in the absence of any power of review, the Management
could not reopen the matter and conduct a fresh enquiry on the
same charges. In support of his submissions, Mr. Deshmukh relied
upon the judgment of the Supreme Court in Director General, R.P.F.
v. Saibabu, AIR 2003 SC 1437. He submitted that the Supreme
Court had considered the principle against double jeopardy in that
case and held that imposing a second penalty on the basis of the
same cause of action would amount to double jeopardy. According
to him, the facts of that case were similar to the present matter, as
both cases concerned disciplinary proceedings in service matters.
He relied upon paragraph 31 of the judgment, wherein the
Supreme Court considered the relevant earlier judgment and
observed that the charges against the appellant in the first charge-
sheet were the same as those in the second enquiry. Mr. Deshmukh
submitted that the Petitioners' contention regarding permission
obtained from the office of Respondent No. 3 to conduct the
second enquiry had been considered in detail by the School
Tribunal. According to him, paragraphs 18 to 28 of the Tribunal's
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judgment deal with the Petitioners' submissions and the contents
of the letter dated 29 September 2015. He submitted that the
Petitioners' present contention was legally unsustainable and had
been raised as an afterthought. He requested that this submission
be considered while deciding the present Writ Petition.
8. In support of his submissions, Mr. Deshmukh relied upon the
judgments in Union of India v. K.D. Pandey and Another, (2002) 10
SCC 471; Lt. Governor, Delhi and Others v. H.C. Narinder Singh,
(2004) 13 SCC 342; Vijay Shankar Pandey v. Union of India and
Another, ( 2014) 10 SCC 589; The Secretary, Lucy Sequeira Trust
and Another v. Kailash Ramesh Tandel and Others, Civil Appeal
No. 3456 of 2019, decided on 8 April 2019; and Rayat Shikshan
Sanstha v. Gajanan Krishna Swami, Writ Petition No. 6764 of 2018,
decided on 14 December 2023. He relied upon these decisions in
support of his submission that the Management could not initiate a
fresh disciplinary enquiry on the same charges in the
circumstances of the present case.
REASONS AND FINDINGS:
9. The main issue in this Petition is whether the Petitioners
could hold another enquiry against Respondent No. 1 on nearly
the same charges, when the first enquiry was completed and
punishment was given. The other issue is whether the permission
said to have been given by the concerned authority under Section
4-A of the Maharashtra Employees of Private Schools (Conditions
of Service) Regulation Act, 1977, hereinafter referred to as the
MEPS Act, were enough to permit the second enquiry.
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10. The Petitioners say that Respondent No. 1 was accused of
molesting a minor girl student during the last week of December
2011 and again on 7 July 2012. Because of these allegations, a
First Information Report bearing C.R. No. 252 of 2012 was
registered against him on 3 August 2012 for offences under
Sections 354 and 506 of the Indian Penal Code. A show cause
notice was thereafter issued to Respondent No. 1 on 24 August
2012. He was then suspended from service with effect from 1
November 2012. An enquiry was held and the Enquiry Committee
submitted its report on 1 March 2013. According to the Petitioners,
Respondent No. 1 was punished by not promoting him to the post
of Headmaster and by stopping one increment for one year, which
was thereafter set aside. However, the Advocate for Respondent
No. 1 says that the charges about the alleged misconduct with the
girl student were not proved in the first enquiry. According to him,
the punishment was given because of other complaints, including
the complaint made by Assistant Teacher Sulakshana Chavan.
11. The events which took place later are required to be seen.
The record before the School Tribunal mentions an order dated 28
August 2015 passed by the concerned authority and directions or
correspondence during September and October 2015. After these
events, the Petitioners held another enquiry and terminated the
services of Respondent No. 1 by order dated 21 September 2016.
Respondent No. 1 then challenged that termination before the
School Tribunal.
12. The Petitioners say that the first enquiry did not consider the
condition of the minor girl. According to them, she was suffering
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from mental trauma and was not in a position to give her
evidence. They say that additional evidence was available and,
because the allegations were serious, the matter needed to be
examined once again. Their case is that they had obtained
permission from the concerned authority under Section 4-A of the
MEPS Act to conduct the fresh enquiry.
13. Mr. Govilkar, learned Senior Advocate appearing for the
Petitioners, submits that the School Tribunal did not consider the
statement of the victim girl and the statements of the additional
witnesses. According to him, the Petitioners did not start the
second enquiry on their own, but had obtained permission from
the concerned authority. He says that the Tribunal wrongly relied
upon a letter dated 28 September 2015, which, according to the
Petitioners, was not available on record. He therefore submits that
the order passed by the School Tribunal should be set aside.
14. Mr. Deshmukh, learned Advocate appearing for Respondent
No. 1, opposes the Petition. He submits that the first charge-sheet
contained nine charges concerning the alleged misconduct with
the girl student, but those charges were not proved. According to
him, almost the same charges were again taken up in the second
enquiry. Respondent No. 1 had faced disciplinary proceedings and
punishment. Therefore, the Management could not start another
enquiry only because it was not satisfied with the result of the first
enquiry.
15. Mr. Deshmukh submits that Section 4-A does not give the
Management unlimited power to reopen an enquiry which has
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been completed. He relies upon the judgments of the Supreme
Court. According to him, these judgments show that the same
charges cannot be examined only to get a finding or punishment
which was not obtained in the earlier enquiry.
16. I have considered the arguments of both sides and the
material placed before the Court. The allegations against
Respondent No. 1 are serious. The safety and dignity of girl
students in a school must be protected. However, the seriousness
of an allegation does not give the Management a power which the
law has not provided. The question is whether the Petitioners
acted within the limits of the MEPS Act and the legal principles
governing disciplinary enquiries.
17. It is therefore necessary to consider Section 4-A of the MEPS
Act. The relevant part of the provision reads as follows:
“Section 4A: Director’s power to hold or order holding of
inquiries. —
(1) Notwithstanding anything contained in sub-section (6) of
section 4 or any other provisions of this Act or the rules
made thereunder, where in any case of alleged misconduct or
misbehaviour of a serious nature or moral turpitude of an
employee, —
(a) an inquiry is held by an Inquiry Committee into such
allegations and the Director is of the opinion that the Inquiry
Committee has unreasonably exonerated the employee, he
may call for and examine the record and proceeding of such
inquiry for the purpose of satisfying himself as to the
correctness of the decision on the basis of its findings, and
may either annul, revise, modify or confirm the said decision
or may direct the Inquiry Committee to make inquiry for
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taking such additional evidence as they may think necessary
or he may himself take or authorise any other officer not
below the rank of the Education Officer to take such
additional evidence”
18. The provision states:
“Provided that, the Director shall not record any order under
this subsection without giving the party affected thereby and
the Management an opportunity of being heard.”
19. The words used in Section 4-A have to be considered
carefully. This section gives the Director power to examine an
enquiry relating to serious misconduct or moral wrongdoing. If the
Director is of the opinion that the Inquiry Committee has
unreasonably cleared the employee, the Director may cancel,
change, modify or confirm the decision. The Director may direct
the Inquiry Committee to conduct enquiry for taking additional
evidence. Therefore, it cannot be said that the Director has no
power to interfere with an earlier enquiry. Section 4-A provides
such power. But the power must be used by following the
conditions given in that section. The Director must form the
required opinion that the employee was unreasonably cleared. If
enquiry is directed, it must be conducted according to law. The
employee who is affected and the Management must be given an
opportunity of being heard before an order is passed under clause
(a) of sub-section (1). Section 4-A does not give the Management a
separate and unlimited power to hold a second enquiry whenever
it feels that the result of the first enquiry was not satisfactory. The
Management must remain within the powers given by the Act. The
special power given to the Director cannot be treated as a general
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permission to reopen every completed disciplinary enquiry without
considering what had taken place in the first enquiry.
20. In the present case, the School Tribunal examined the first
and second charge-sheets. In paragraph 31 of the order under
challenge, the Tribunal recorded that, out of the eight charges in
the second enquiry, five charges concerned the same girl student.
One additional charge concerning alleged misconduct with former
teacher Sulakshana Chavan was included. The Tribunal noted that,
according to the material before it, the matter relating to that
teacher had ended after Respondent No. 1 gave an apology and
was warned. The Tribunal observed that Charges Nos. 6 and 7
referred to alleged misconduct with girl students without giving
proper details. On considering the finding in paragraph 31, I find
that the Tribunal did not decide the matter only by comparing the
number of charges. It looked at the actual nature of the charges.
The Tribunal found that the main allegations in the second enquiry
were almost the same as those in the first enquiry. The Petitioners
have not shown from the material before this Court that this
finding was incorrect or that the Tribunal misunderstood the
nature of the two sets of charges.
21. There is some substance in the Petitioners' submission that
the victim girl was suffering from mental trauma during the first
enquiry. A person, particularly a minor, may not be able to give a
complete statement when suffering from mental distress. It is
possible that additional evidence may become available after an
enquiry has been completed. Section 4-A recognises that evidence
may be needed in certain cases. However, the availability of
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additional evidence and the serious nature of the allegations do
not automatically make every later enquiry lawful. The important
question is whether the additional evidence was taken by
following the procedure permitted by law. A enquiry permitted
under Section 4-A and a fresh enquiry started to examine almost
the same charges again are not the same. This difference must be
considered in the present Petition.
22. The Petitioners rely upon the permission which was given by
the concerned authority. They say that they approached the
authority after considering the condition of the minor girl and the
seriousness of the allegations. However, there is a dispute about
the existence and availability on record of the letter dated 28
September 2015. The order under challenge refers to directions or
correspondence during September 2015, while paragraph 28 of
the Tribunal's order refers to another letter dated 26 October 2015.
These circumstances must be considered along with the
requirement of giving a proper hearing under Section 4-A. In
paragraph 28, the School Tribunal recorded that a letter dated 26
October 2015 issued by Respondent No. 4 to Respondent Nos. 1
and 2 stated that the employee should be prevented from making
representations to the authority. The Tribunal observed that
Respondent No. 4 was not willing to hear the representations of
the employee, who had been deprived of the benefit of the order
dated 28 August 2015 passed by the same officer.
23. Giving an opportunity of hearing under Section 4-A is not
merely a formality. If an order is passed to reopen an earlier
enquiry and the employee is affected by it, he must get a fair
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chance to place his case before the authority. The seriousness of
the allegations does not permit the authority to ignore this
requirement. The Petitioners have not placed sufficient material
before this Court to show that the Tribunal was wrong in its
finding about the manner in which the later directions were issued
and the opportunity given to Respondent No. 1. Therefore, the
Petitioners' argument that the second enquiry was authorised
under Section 4-A must be examined by looking at the procedure
followed. Merely because the law gives a power, it does not mean
that the power has been used in every case. It must be shown that
the authority considered the conditions mentioned in Section 4-A,
examined whether evidence was necessary and gave the affected
parties an opportunity of being heard. The record considered by
the Tribunal does not show that these requirements were followed
in a way which can support the later termination order.
24. The next question is whether the principle laid down by the
Supreme Court in K.D. Pandey , applies to the present case. In that
matter, the Supreme Court considered whether another enquiry
could be held after the first enquiry had found that the charges
were not proved. In paragraph 5, the Supreme Court observed:
“Indeed this resulted in second inquiry and not in a inquiry
on the same set of charges and the material on record. If this
process is allowed the inquiries can go on perpetually until
the view of the inquiry authority is in accord with that of the
disciplinary authority and it would be abuse of the process of
law.”
25. The principle in this decision is that a disciplinary authority
cannot send a matter for enquiry merely because it disagrees with
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the earlier report. There must be a reason for asking for enquiry.
Otherwise, an employee may have to face one enquiry after
another until a finding against him is obtained.
26. The Petitioners are right in saying that the present matter
involves serious allegations of misconduct and that the first
enquiry did not prove the main allegations relating to the girl
student. They have relied upon the later statements of the victim
and additional witnesses. These circumstances make the present
case somewhat different from a case where the authority rejects an
enquiry report without giving any other reason. However, this
difference does not take the Petitioners outside the principle laid
down in K.D. Pandey . The Tribunal found that almost the same
charges were repeated. The Petitioners have not established that
the later proceedings were restricted to taking additional evidence
through a lawful process under a valid direction issued according
to Section 4-A. They have not been able to displace the findings
about the manner in which the authority dealt with the
representations of Respondent No. 1.
27. In H.C. Narinder Singh, the Supreme Court considered a
second disciplinary action based on the same cause of action. In
paragraph 4, the Court held:
“The second proposed action based on the same cause of
action proposing to deny promotion or reversion is
contemplated under the impugned show-cause notice.
Second penalty based on the same cause of action would
amount to double jeopardy. The Tribunal was right in law in
annulling such an action.”
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28. This principle must be applied carefully. It is not necessary in
the present case to hold that Article 20(2) of the Constitution,
which deals with prosecution and punishment for the same
offence, applies to departmental proceedings in the same way as it
applies to a criminal case. The relevant point is that the
Management cannot start a second disciplinary proceeding to
impose another punishment for the same cause of action without
legal authority.
29. The Petitioners submit that the second enquiry was not a
continuation of the first enquiry, but was supported by additional
evidence relating to the victim girl. I have considered this
argument. If proper enquiry had been ordered under Section 4-A
after the Director formed the necessary opinion and followed the
prescribed procedure, the fact that some charges were similar to
those in the first enquiry would not make the enquiry unlawful.
However, the Petitioners must first show that the statutory
procedure was followed. Referring to the serious nature of the
allegations cannot replace this requirement.
30. In Vijay Shankar Pandey, in paragraphs 25 and 26, the
Supreme Court relied upon the Constitution Bench decision in K.R.
Deb v. Collector of Central Excise, (1971) 2 SCC 102. The relevant
portion reproduced in paragraph 25 reads:
“12. It seems to us that Rule 15, on the face of it, really
provides for one inquiry but it may be possible if in a
particular case there has been no proper enquiry because
some serious defect has crept into the inquiry or some
important witnesses were not available at the time of the
inquiry or were not examined for some other reason, the
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disciplinary authority may ask the enquiry officer to record
evidence . But there is no provision in Rule 15 for completely
setting aside previous inquiries on the ground that the report
of the inquiring officer or officers does not appeal to the
disciplinary authority. The disciplinary authority has enough
powers to reconsider the evidence and come to its own
conclusion under Rule 9.”
31. The Supreme Court held in paragraph 26:
“It can be seen from the above that the normal rule is that
there can be only one enquiry. This Court has recognised the
possibility of a enquiry in certain circumstances enumerated
therein. The decision however makes it clear that the fact
that the report submitted by the enquiring authority is not
acceptable to the disciplinary authority, is not a ground for
completely setting aside the enquiry report and ordering a
second enquiry.”
32. These decisions do not mean that enquiry can never be held.
In some cases, a defect in the enquiry may make it necessary to
take additional evidence or conduct proceedings. But there must
be a lawful reason for doing so and the procedure prescribed by
law must be followed. The purpose cannot be to obtain a different
finding on the same material.
33. In the present case, the Petitioners have explained why they
thought another enquiry was necessary. Their explanation cannot
be rejected only because the allegations are serious. However,
when the first enquiry had been completed, the Management was
required to show that the later proceedings were permitted under
Section 4-A and were conducted within the limits of that provision.
The Tribunal's findings about the similarity of the charges and the
circumstances in which the later directions were issued have not
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been displaced by the material placed before this Court.
34. The Respondent rely upon the judgment of the Supreme
Court in The Secretary, Lucy Sequeira Trust. In paragraph 17, the
Supreme Court observed:
“It is well settled that a departmental proceeding and
proceedings in a criminal court are completely different. The
purpose is different, the standard of proof is different and
the approach is different.”
35. The Supreme Court held that departmental proceedings
concerning serious allegations of sexual harassment must be
considered independently of a pending criminal trial. In paragraph
18, while referring to Apparel Export Promotion Council v. A.K.
Chopra, (1999) 1 SCC 759, the Court emphasised that such cases
must be examined with sensitivity and by considering the entire
material. Courts should not be influenced by small differences in
statements or narrow technical objections. The importance of these
observations cannot be disputed. Allegations of misconduct by a
teacher towards a minor girl student must be considered seriously.
School authorities have a duty to protect students. They cannot
ignore credible allegations merely because the criminal case has
not yet been completed. However, Lucy Sequeira Trust does not
say that the Management can ignore the legal procedure required
for conducting a disciplinary enquiry. The facts of Lucy Sequeira
Trust are important. In paragraph 19, the Supreme Court referred
to an enquiry in which twelve persons, including five girl students,
were examined. The Court found that the Management had acted
fairly and openly and upheld the termination. That case concerned
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action taken after an enquiry conducted on the material available
in that matter. It does not permit another enquiry on the same
cause of action without following the requirements of the
applicable law.
36. The Respondent has relied upon the judgment of this Court
in Rayat Shikshan Sanstha v. Gajanan Krishna Swami, Writ Petition
No. 6764 of 2018, decided on 14 December 2023 , reported as
2023:BHC-AS:38284. In that case, the School Tribunal had set
aside a termination order mainly because the employee's Defence
Nominee had not signed the final part of the enquiry report. In
paragraphs 10 and 11 of that judgment, this Court examined the
report and found that the Defence Nominee had signed the
findings concerning both charges. He had recorded that he
disagreed with the other members and thereafter refused to give
separate reasons before leaving the meeting. The Court held that
the employee could not get relief because his own Defence
Nominee had refused to complete that part of the report. In
paragraph 12, this Court observed that there was sufficient
evidence to prove the charges and that the Tribunal should not
have adopted an excessively technical approach. The principle in
Rayat Shikshan Sanstha is that a Tribunal should not set aside
disciplinary action merely because of a technical defect, when the
enquiry was otherwise conducted and sufficient evidence
supported the charges. But that decision does not remove the
requirement that disciplinary action must be taken within the
powers given by law. There is a difference between overlooking a
small defect in an otherwise valid enquiry and allowing another
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enquiry on almost the same charges without showing that Section
4-A was followed.
37. I am therefore unable to accept the Petitioners' argument
that the School Tribunal interfered with the termination order only
on a technical ground. The Tribunal examined the original charges,
the connection between the first and second charge-sheets, the
earlier punishment and the later proceedings before the concerned
authority. It found that the later enquiry was substantially based
on the same cause of action and that the required legal basis for
conducting it had not been established. I find that the Petitioners
cannot justify the fresh enquiry merely by referring to the earlier
conduct of Respondent No. 1. Previous conduct, if relevant and
proved according to law, may be considered for a proper purpose.
However, an earlier allegation or disciplinary proceeding cannot
automatically be used as a reason to reopen charges which have
been dealt with. Every proceeding must be supported by the
powers given under the Act and the Rules.
38. I have considered the serious nature of the allegations. The
evidence said to have been given by the victim girl and the
additional witnesses is relevant for deciding whether the
allegations were proved in the second enquiry. However, even
important and relevant evidence cannot correct the failure to
satisfy a mandatory legal requirement governing the power to start
or reopen an enquiry. The Court cannot uphold a termination
order only because the allegations are serious. It must examine
whether the procedure required by law was followed.
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39. I am, therefore, of the view that the legal objection raised by
Respondent No. 1 must be accepted. Section 4-A cannot be used as
an unrestricted power to reopen a disciplinary matter repeatedly.
On the facts recorded by the School Tribunal, the second enquiry
has not been shown to be a lawful enquiry for taking additional
evidence under a valid exercise of power under Section 4-A.
Therefore, the termination order dated 21 September 2016, which
is based on that enquiry, cannot be upheld.
40. It must be made clear that this finding does not mean that
the allegations against Respondent No. 1 were false or that the
alleged conduct, if proved, would be acceptable. This Court is
deciding whether the disciplinary action challenged in this Writ
Petition was legal. The serious nature of the allegations cannot be
used as a reason to avoid the requirements of the Act. In the same
way, the finding that the second enquiry was not lawfully
established does not mean that the alleged conduct of Respondent
No. 1 was proper.
41. The next question is about the relief granted by the School
Tribunal. The Tribunal directed the Petitioners to reinstate
Respondent No. 1 in his earlier post and pay him 75% back wages
from the date of termination until he is taken back. In paragraph
37 of the judgment under challenge, the Tribunal considered what
should happen to Respondent No. 1 if the fresh enquiry and the
termination based on it were found to be illegal. In paragraph 38,
it considered the question of back wages. The Tribunal noted that
Respondent No. 1 had filed an affidavit stating that he had not
been gainfully employed after his termination and that the
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Management had not challenged this statement. Back wages have
to be decided according to the facts of each case. In this case, the
Tribunal considered the period during which Respondent No. 1
remained without employment, his affidavit about not having
gainful employment. For these reasons, the Tribunal limited the
back wages to 75%. The Petitioners have not shown any sufficient
reason for this Court to interfere with that decision.
42. The Writ Petition is dismissed. The judgment and order
dated 13 April 2018 passed by the School Tribunal, Mumbai
Region, in Appeal No. 27 of 2016 is upheld, subject to the
following clarification regarding the relief to be granted to
Respondent No. 1.
43. During the pendency of the present Writ Petition,
Respondent No. 1 has attained the age of superannuation.
Consequently, the direction for reinstatement shall stand modified
to the extent that Respondent No. 1 shall be entitled to all
consequential service and retiral benefits admissible to him in
accordance with law, by treating his service in accordance with the
order passed by the School Tribunal. The question of back wages
shall be governed by the following directions.
44. Respondent No. 1 shall be entitled to 75% back wages for
the period from the date of his termination until the date on which
he would have attained the age of superannuation, as directed by
the School Tribunal. The liability to pay such back wages shall be
determined in the following manner:
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(i) If the State Government has not released the grant-in-
aid admissible in respect of the post held by Respondent No.
1 for the relevant period, the State Government shall bear
the liability to pay the aforesaid back wages.
(ii) If the State Government has released the grant-in-aid
admissible in respect of the said post for the relevant period,
the Management shall be liable to pay the aforesaid back
wages to Respondent No. 1.
45. The concerned authorities and the Management shall
calculate and release the admissible retiral and other
consequential service benefits of Respondent No. 1, in accordance
with law, within a period of twelve weeks from the date of
production of an authenticated copy of this judgment. The back
wages, as directed above, shall also be calculated and paid within
the same period.
46. Rule is discharged in the above terms. There shall be no
order as to costs.
(AMIT BORKAR, J.)
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