Bombay High Court
Krishna Hasha Mokal vs Secretary/President- Peoples … on 12 March, 2025
2025:BHC-AS:11544
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1754 OF 2006
Shri Krishna Hasha Mokal,
Residing at H.No.43/F,
Walmiki Worli Village,
Mumbai 400 025. ... Petitioner
V/s.
1. Secretary/President
People's Education Society
Raosaheb N.M.Kala Marg,
Gokhale Road (S), Mumbai 400028
2. Head Master Jr. College
& Maharashtra High School No.2,
Gokhale Road (S), Raosaheb,
N.M.Kale Marg, Mumbai 400 028
3. The Education Officer,
Education (Department)
Mumbai.
4. The State of Maharashtra
Through Secretary Education Dept. ... Respondents
______________
Mr. Prashant Bhavke, for the Petitioner.
Mr. Mandar Limaye i/b Mr. Mayuresh S. Lagu, for the Respondent Nos.
1 and 2.
Ms. Kavita Salunkhe, AGP for Respondent Nos. 3 and 4-State.
_______________
CORAM : SANDEEP V. MARNE, J.
Digitally
signed by
PRIYA
RESERVED ON : 28 FEBRUARY 2025
PRIYA RAJESH
RAJESH SOPARKAR
SOPARKAR Date:
2025.03.12
14:58:24
+0530 PRONOUNCED ON : 12 MARCH 2025
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JUDGMENT :
1. Petitioner has filed this petition challenging the judgment and
order dated 31 October 2005 passed by Presiding Officer, School
Tribunal, Mumbai dismissing Appeal No. MUM/116/2000 which was
filed by the Petitioner challenging his termination order dated
8 September 2000.
2. Briefly stated, facts of the case are that, Respondent No.1-People’s
Education Society is a registered Trust which runs Maharashtra High
School in Mumbai, which is an aided and recognized school. Petitioner
was initially working with Mahatma Gandhi Vidyamandir School at
Bandra and later worked at Navajeevan Vidyamandir at Bhandup. He
thereafter served Aryan English School as well as Sir Elly Kadoorie.
school. Thereafter, the Petitioner started working with Respondent
No.2-Vidya Mandir High School from 6 September 1991. It is
Petitioner’s case that his services were terminated on 20 March 1992 on
the ground of unsatisfactory work. He filed appeal before School
Tribunal, which was allowed by setting aside termination order dated
20 March 1992. Petitioner was reinstated in service on 13 July 1994. It
is the case of the Petitioner that the Head Master deliberately took
signatures of students on blank papers and prepared statements thereon
against him. Petitioner was issued with show cause notice on 13 April
2000 alleging that he abused and beat up the students, used
objectionable language to a student during yoga period and drew nude
picture of a woman on the blackboard in Class of Standard 8. Several
other allegations were also levelled against the Petitioners in the said
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show cause notice dated 13 April 2000. Petitioner replied the show
cause notice on 20 April 2000 denying the allegations. The
Management thereafter issued chargesheet dated 30 June 2000 against
the Petitioner alleging several charges against him. Petitioner denied the
charges by reply dated 8 July 2000. Inquiry was conducted into the
charges. The Inquiry Committee submitted two reports and accordingly
held Petitioner guilty of charges whereas Petitioner’s representative on
the Committee submitted his independent report exonerating the
Petitioner. The Management issued termination order dated
5 September 2000.
3. Petitioner preferred Appeal No.116 of 2000 before School
Tribunal Mumbai challenging the termination letter. The Tribunal has
proceeded to dismiss the appeal by judgment and order dated
31 October 2005, which is the subject matter of challenge in the present
petition.
4. Mr. Bhavke, the learned counsel appearing for Petitioner would
submit that the Tribunal has erred in dismissing Petitioner’s appeal
without noticing that the conduct of inquiry was in violation of
provisions of Rule 37 of Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (MEPS Rules). He would submit
that Petitioner was denied due opportunity of defence as well the
witnesses were examined on one single day. That the witnesses did not
state anything against the Petitioner in their examination-in-chief and
merely confirmed the pre-recorded statements/complaints. That
Petitioner was not provided with copies of the said statement/
complaints and was thus denied proper opportunity of cross-examining
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the witnesses. He would submit that the procedure followed was in
clear violation of provisions of Rule 37(2)(d) of the Rules of 1981.
5. Mr. Bhavke would further submit that combined report of the
Inquiry Committee was not submitted and that there are two separate
and conflicting reports, one holding Petitioner guilty and other
exonerating the Petitioner. He would rely upon judgment of the Apex
Court in Vidya Vikas Mandal and another vs. Education Officer and
another1 in support of his contention that submission of joint report by
all three members of the Inquiry Committee is mandatory.
6. Mr. Bhavke would further submit that under Rule 37 (4) of the
Rule of 1981, summary of the inquiry proceedings was required to be
served on the Petitioner. That though the summary is shown to have
been forwarded to the Petitioner vide letter dated 11 August 2000, the
same was actually served on him on 4 September 2000 and an order
terminating his services was issued immediately on 5 September 2000.
He would rely upon judgment of this Court in National Integration and
Education Welfare Society, Akola Vs. Presiding Officer, School Tribunal,
Amravati and other2 in support of his contention that grant of full
opportunity under provisions of Rule 37(2)(b) of MEPS Rules is
mandatory. He would also rely upon judgment of this Court in Ramdas
Tejram Bhoyar Vs. Education Officer & ors.3 in support of his contention
of mandatory requirement for submission of combined report. Mr.
Bhavke would submit that since the inquiry is conducted in gross
1
(2007) 11 SCC 352
2
2022 (3) Mh.L.J. 140
3
2015 (6) Bom CR 76
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violation of provisions of Rule 37, the School Tribunal ought to have
allowed the appeal by setting aside the termination letter.
7. The Petition is opposed by Mr. Limaye, the learned counsel
appearing for Respondent-Management. He would submit that
Petitioner faced very serious charges of exhibiting objectionable conduct
before girl students and that therefore punishment of termination was
clearly warranted for commission of such serious misconduct. That
Petitioner was given full opportunity to defend himself in the inquiry.
That there is sufficient evidence on record to connect Petitioner to the
misconduct alleged in the chargesheet. He would rely upon judgment of
this Court in Syed Nasiruddin s/o Karimuddin vs. N. B. Shaikh and
others4 in support of his contention that no opportunity infact is
warranted to a teacher who faces charge of outraging modesty of girl
students/ lady teachers. That despite of absence of requirement for
conduct of full-fledged inquiry considering the nature of charges
levelled against Petitioner, the Management still conducted detailed
inquiry by examining as many as 16 witnesses and by offering all the
witnesses for cross-examination to the Petitioner. That the Petitioner has
cross-examined all the management witnesses and has availed proper
opportunity of defence. He would therefore submit that the order
passed by the School Tribunal does not warrant any interference by this
Court in exercise of extra-ordinary jurisdiction under Article 227 of the
Constitution of India. He would pray for dismissal of the petition.
4
2002(5) Mh.L.J. 96
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8. I have also heard Ms. Salunkhe, the learned AGP appearing for
the Respondent Nos. 3 and 4, who would also oppose the Petition and
support the order passed by the School Tribunal.
9. Rival contentions of parties now fall for my consideration.
10. While working as Assistant Teacher in Respondent No.2-School,
Petitioner faced following charges in the chargesheet dated
30 June 2000 :
जावक क्र. 129/6-2000 दि नांक:- 30/06/2000
प्रति . घरचा पत्ता:-
श्री. कृ. ह. मोकल खोली क्र. ४३/एफ
सहाय्यक शि#क्षक वाल्मि&मकी चौक, वरळी
महाराष्ट्र हायस्कूल क्र. २ व्हि0हलेज, मुंबई ४०० ०२५.
ा र, मुंबई- ४०००२८.
आरोपपत्र
महो य,
ुम्ही या ै संस्थेच्या महाराष्ट्र हायस्कूल क्र.२, ा र, मुंबई ४०००२८, येथे सहाय्यक शि#क्षक या
प ावर काय> र आहा . ुमची गैरव > णूक, कामा ील बुध् ीपुरस्सर व स हयगय व अकाय> क्षम ा
याबाब ुम्ही पुढीलप्रमाणे गंभीर गुन्हे केले आहे .
१] ुम्ही महाराष्ट्र खाजगी #ाळां ील कम> चारी सेवेच्या # G दिनयमावली १९८१ च्या दिनयम क्र . २८
[५] [अ] मध्ये नमू केलेला गैरव > णुकीचा गंभीर गुनहा खालील प्रसंगी केला आहे.
अ] ुम्ही दिवद्याथG व दिव याथGनींना ुध् ा मारहाण कर ा, शि#वीगाळ कर ा, असभ्य, अपमानास्प
बोचरी भाषा वापर ा. अ#ा घटना दि . २३.२.२०००, १७.२०.२०००, २.२. २००० रोजी व त्यापूवGही
घड&या आहे . या सव> प्रसंगी ुम्ही दिनयम क्र. २८ [५] अ [i] नुसार ेवेच्या अटी व # G याचा भंग
करण्याचा गुन्हा केला आहे. व ो ुम्ही दि ले&या स्पष्टीकरणा मान्य केला आहे.
ब] दि . ४.८.१९९९ रोजी नववी/ड च्या योगाच्या ासिसकेला दिवद्याथGनींनी #ारीरिरक शि#क्षणाचा गणवे#
घा लेला नस&यामुळे झोपुन करा0याची योगासने करण्यास नकार दि ला. े0हा असभ्य भा ुम्ही
त्यांना मुलांसमीर म्हणाला की ” ुमच्या चड्डया दि स&या र काय झाले?
अ#ाच प्रकारे १९.११.१९९८ रोजी ८वी/ड च्या वगा> ुम्ही फळ्यावर नग्न स्त्रीचे तिचत्र काढले . त्याना
एका दिवद्यार्थिथनीने हरक घी ली अस ा ुम्ही ति ला “गप्प बै ु, नाही र ुझे तिचत्र काढीन” अ#ी
धमकी दि ली.
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या प्रसंगी ुम्ही दिनयम क्र. २८ [५] अ [ii] नुसार आचारसंदिह ेचा भंग करण्याचा गुन्हा केला आहे.
क) ुम्ही मुख्याध्यादिपका श्रीम ी भाटीया व पय> ेशि#का श्रीम ी पाटणकर यांच्या अतिधकारांचा उपम >
कर ा व आप&या हका-यां#ी उद्दामपणे वाग ा.
यामध्ये ुम्ही दिनयम क्र. २८ [५] अ [ii] व [iii] नुसार आचारसंदिह ेचा भंग व #ाच स्वरुपाची इ र
कृत्ये करण्याचा गुन्हा केला आहे.
ड] ुम्ही ऑगस्ट १९९७ ची फी जमा करण्याच्या ारखीनं र उशि#रा दि . ३०.८.१९९७ रोजी जमा
केली.
यामध्ये ुम्ही दिनयम क्र. २८ [५] अ [ii] आचारसंदिह ेचा भंग करण्याचा गुन्हा केला आहे . व ो ुम्ही
मान्य केला आहे.
२] ुम्ही महाराष्ट्र खाजगी #ाळा कम> चारी सेवेच्या # G दिनयमावली १९८१ च्या दिनयम क्र . २८ [५]
क मध्ये नमू केलेला क > 0या बुध् ीपुरत्सर व स हयगय करण्याचा गुन्हा खालील घटनांमध्ये केला
आहे.
अ] दि . १२.४.१९९९ रोजी ब्लॉक नं. २ वर पय> वेक्षक म्हणून काम करी अस ाना गशिण [२] या
दिवषयाच्या अ#ोक सणस या दिवद्यार्थ्यांयाgच्या उत्तर पदित्रकेच्या पुरवण्या बांधणून न घे &या मुळे त्याला २२
गुणांना मुकावे लाग े अस े. सेच उत्तरांच्या योग्य ेपेक्षा कमी गुण ेणे, परीक्षौंला गैरहजर असणा-या
दिवद्यार्थ्यांयाgना गुण ेणे, परीक्षेच्या पय> वेक्षणा हयगय करणे, पालकसभेला गैरहजर राहणे अ#ाही घटना
ुमच्याकडू न घड&या आहे .
येथे ुम्ही दिनयम क्र. २८ [५] क च्या [i] व [iii] नु ार या दिनयमा0 ारे किंकवा न्वये दिवदिह करण्या
आले&या क > 0यापासून च्यु होणे दिकवा क > 0य पार पाडण्या कसूर करण्याचा गुन्हा केला आहे. व ो
ुम्ही मान्य केला आहे.
ब) दि . ५.१०.१९९८ रोजी झाले&या इति हासाच्या परीक्षे क&पना रघुनाथ दिप लकर या दिवद्यार्थिथनीच्या
उत्तरपदित्रकेचे पूण> ः चूकीचे परीक्षक्षण करून योग्य ेपेक्षा खूप जास् म्हणजे ६० पैकी २५ गुण दि ले.
येथे ुम्ही दिनयम क्र. २८ [५] क च्या [१] व [iii] नु ार या दिनयमा0 ारे किंकवा न्वये दिवही करण्या
आले&या क > 0या-पासूनच्यु होणे किंकवा क > 0य पार पाडण्या कसूर करण्याचा गुन्हा केला आहे . व ो
ुम्ही मान्य केला आहे
क) वेगवेगळ्या परीक्षांच्या उत्तरपदित्रका ुम्ही वेळेवर पासून न दि &यामुळे परीक्षेचा दिनकाल वैळेवर न
लागण्याची #क्य ा दिनमा>ण झाली. अ#ा घटना एदिप्रल १९९८, नो0हेंबर १९९५ मध्येही घड&या.
येथे ुम्ही दिनयम २८ [५] क च्या [i] व [iii] नु ार या दिनयमा0 ारे दिकवा न्वये दिवहत्ती करण्या
आले&या क > 0या-पासूनच्यु होणे किंकवा क > 0य पार पाड पाडण्या कसूर करण्याचा गुन्हा केला आहे.
व ो ुम्ही मान्य केला आहे.
३] ुम्ही महाराष्ट्र खाजगी #ाळा कम> चारी सेवा # G दिनयमावली १९८१ 0या दिनयम क्र. २८ (५) ड मध्ये
नमू केलेला अकाय> क्षम ेपा गुन्हा खालील घाटनांमध्ये केला आहे.
अ] ुमचे ुमच्या वगा>वर दिनयंत्रण नस&याने १५.२.२००० ,७.२.२०००, २७.१.२००० व त्यापूवGही
अनेक ा आढळू न आले आहे
येथे ुम्ही दिनयम क्र. २८[५] ड च्या [iii] नुसार गुन्हा केला आहे
ब] १८.२.२००० रोजी ुम्ही ९वी/इच्या वगा> बीजगशिण ाची चुकीची शि#काप ाना आढळला . सेच
१४.७.१९९८ रोजी चंद्रग्रहणाबद्दल चुकीची मादिह ी े ाना आढळला .
येथी ुम्ही दिनयम क्र. २८[५] ड च्या [i] नुसार #ैक्षशिणक प्रग ी न करणे व ज्ञान उ यव न ठे वण्याचा
गुन्हा केला आहे.
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क) आक्टोबर – तिडसेबर १९९८ मध्ये दिवद्यार्थ्यांयांची प्रग ीपुस् के योग्यरा ाने न भरणे, २७.१०.१९९२
रोजी पय> वेक्षणा न कर ा डु लक्या घे &यामुळे दिवद्यार्थ्यांया>ला कॉपी करण्यास संधी दिमळणे , गैरहजर
दिवद्यार्थ्यांयांना हजर ाखवणे असा ुमचा दिनष्काळजीपणा दिन #> नास आला आहे. अनेकवेळा पय> वेक्षानं र
पुरवणी पदित्रकाचा गठ् ठा ुम्ही वगा> च सोडू न ये ा. याचा रु ु पयोग केला जाऊ #क ो.
येथे ुम्ही दिनयम क्र. २८[५] ड च्या [iii] नुसार क > 0या-बाब पूण> ः हलगजGपणा करण्याचा गुन्हा केला
आहे. व ो ुम्ही मान्य केला आहे.
वरील गुन्हयाबाब चा आवश्यक पुरावा सेच सं र्थिभ अतिधक पुरावा चौक#ीसदिम ीच्या कामकाजाच्या
वेळी सा र करण्या येईल.
आपली
ऊर्मिमल आपटे
मुख्य काय> कारी अतिधकारा
Secretary
People’s Education Society,
CHIEF EXECUTIVE OFFICER
PEOPLES EDUCATION SOCIETY
11. The chargesheet dated 30 June 2000 was preceded by show
cause notice dated 13 April 2000. The allegations in the show cause
notice were denied by the Petitioner by reply dated 20 April 2000. The
charges levelled against him in the chargesheet dated 30 June 2000
were denied by the Petitioner by his reply dated 8 July 2000. In his
reply, Petitioner attributed the chargesheet to the order passed by the
School Tribunal setting aside previous termination of 1992 and alleged
that after his reinstatement in 1994, the Head Master had hatched a
conspiracy to once again terminate him by implicating him in false
charges. The Management constituted Inquiry Committee comprising of
Awardee Teacher-Mr. Ramakant Pandey, Mr. Vasant Karve-Management
Representative and Mr. Janardan Mitharam Jangle-Petitioner’s nominee.
The Inquiry Committee conducted seven meetings. In the fifth meeting
held on 3 August 2000, out of the 16 witnesses proposed to be
examined by the Management, 14 witnesses were present before the
Committee. The depositions of said 14 witnesses were recorded by the
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Inquiry Committee. Petitioner’s nominee was present in the fifth
meeting of the Inquiry Committee when witnesses were examined, but
apparently the Petitioner was absent. In the sixth meeting held on
8 August 2000, a query was raised as to whether Petitioner was
desirous of cross-examining the witnesses which were examined in the
fifth inquiry committee meeting. The Petitioner answered in the
affirmative. Though the management representative opposed recall of
the witnesses, the Inquiry Committee decided to recall all the witnesses
for being cross-examined by the Petitioner. The Petitioner accordingly
cross-examined 11 witnesses during the sixth inquiry meeting held on
8 August 2000.
12. It is Petitioner’s contention that the inquiry was conducted in
gross violation of the MEPS Rules. Reliance is particularly placed on
provisions of Rule 37(2)(c) and (d) of MEPS Rules. Rule 37 deals with
procedure of inquiry and provides thus:
37. Procedure of inquiry:
(1) The Management shall prepare a charge-sheet containing specific charges
and shall hand over the same together with the statement of allegations and
the explanation of the employee or the Head as the case may be, to the
Convener of the Inquiry Committee and also forward copies thereof to the
employee or the Head concerned by registered post acknowledgement due,
within 7 days from the date on which the Inquiry Committee is deemed to
have been constituted.
(2)(a) Within 10 days of the receipt of the copies of charge-sheet and the
statement of allegations by the employee or the Head, as the case may be,
(i) If the employee or the Head, as the case may be, desires to tender
any written explanation to the charge-sheet, he shall submit the same
to the Convenor of the Inquiry Committee in person or send it to him
by the registered post acknowledgement due.
(ii) If the Management and the employee or the Head, as the case may
be, desire to examine any witnesses they shall communicate in writing
to the Convenor of the Inquiry Committee the names of witnesses
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(iii) If the Management desires to tender any documents by way of
evidence before the Inquiry Committee, it shall supply true copies of
all such documents to the employee or the Head, as the case may be.
If the document relied upon by the Management is a register or record
of the school it shall permit the employee or the Head as the case may
be, to take out relevant extracts from such register of record. The
employee or the Head as the case may be, shall supply to the
Management true copies of all the documents to be produced by him
in evidence.
(b) Within 3 days after the expiry of the period of 10 days specified in clause
(a), the Inquiry Committee shall meet to proceed with the inquiry and give 10
days notice by registered post acknowledgement due to the Management and
the employee or the Head, as the case may be, to appear for producing
evidence, examining witnesses etc., if any.
(c) The Inquiry Committee shall see that every reasonable opportunity is
extended to the employee for defence of his case.
(d) (i) The Management shall have the right to lead evidence and the right to
cross-examine the witnesses examined on behalf of the employee.
(ii) The employee shall have the right to be heard in person and lead
evidence. He shall also have the right to cross-examine the witnesses
examined on behalf of the Management.
(iii) Sufficient opportunities shall be given to examine all witnesses
notified by both the parties
(e) All the proceedings of the Inquiry Committee shall be recorded and the
same together with the statement of witnesses shall be endorsed by both the
parties in token or authenticity thereof. The refusal to endorse the same by
either of the parties shall be recorded by the Convenor.
(f) The inquiry shall ordinarily be completed within a period of 120 days
from the date of first meeting of the Inquiry Committee or from the date of
suspension of the employee, whichever is earlier, unless the Inquiry
Committee has, in the special circumstances of the case under inquiry,
extended the period of completion of the inquiry with the prior approval of
the Deputy Director. In case the inquiry is to be completed within the period
of 120 days or within the extended period, if any, the employee shall cease to
be under suspension and shall be deemed to have rejoined duties, without
prejudice to continuance of the inquiry.
(3) The Management and the employee or the Head, as the case may be shall
be responsible to see that their nominees and the witnesses, if any, are
present during the inquiry. However, if the Inquiry Committee is convinced
about the absence of either of the parties to the dispute or any of the
members of the Inquiry Committee on any valid ground, the Inquiry
Committee shall adjourn that particular meeting of the Committee. The
meeting so adjourned shall be conducted even in the absence of person
concerned if he fails to remain present for the said adjourned meeting.
(4) The Convener of the Inquiry Committee shall forward to the employee or
the Head, as the case may be a summary of the proceedings and copies of
statements of witnesses, if any, by registered post acknowledgement due
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within four days of completion of the above steps and allow him a time of
seven days to offer his further explanation, if any.
(5) The employee or the Head as the case may be shall submit his further
explanation to the Convener of the Inquiry Committee within a period of
seven days from the date of receipt of the summary of proceedings etc., either
personally or by registered post acknowledgement due.
(6) On receipt of such further explanation or if no explanation is offered
within the aforesaid time the Inquiry Committee shall complete the inquiry
and communicate its findings on the charges against the employee and its
decision on the basis of these findings to the Management for specific action
to be taken against the employee or the Head, as the case may be, within ten
days after the date fixed for receipt of further explanation. It shall also
forward a copy of the same by registered post acknowledgement due to the
employee or the Head, as the case may be. A copy of the findings and
decision shall also be endorsed to the Education Officer or the Deputy
Director, as the case may be, by registered post acknowledgement due.
Thereafter, the decision of the Inquiry Committee shall be implemented by
the Management which shall issue necessary orders within seven days from
the date of receipt of decision of the Inquiry Committee, by registered post
acknowledgement due. The Management shall also endorse a copy of its
order to the Education Officer or the Deputy Director as the case may be.
13. Under Rule 37(2)(c), the Inquiry Committee needs to ensure that
every reasonable opportunity is extended to the employee for defence
of his case. Clause (d) of sub-rule (2) of Rule 37 provides that the
management has right to lead evidence and also to cross-examine the
witnesses examined on behalf of the employee. It further provides that
the employee has right to be heard in-person and lead evidence. He also
has right to cross-examine the witnesses examined on behalf of the
management. Rule 37(2)(d)(iii) provides that sufficient opportunity
shall be given to examine all witnesses notified by both the parties.
14. When the inquiry conducted against the Petitioner is seen in the
light of provisions of Rule 37(2)(c) and (d), I am unable to notice any
serious infraction on the part of the Management in the conduct of the
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inquiry. I do not see as to how there is any infraction of Rule 37(2)(c)
or (d).
15. The Management presented before the Petitioner the witnesses
examined by it for the purpose of conduct of their cross-examination by
him. As a matter of fact, Petitioner was absent in the fifth Inquiry
Committee meeting when 14 witnesses were examined. Petitioner failed
to cross-examine the said witnesses during the course of fifth meeting of
Inquiry Committee. Though Inquiry Committee could have denied
another opportunity to the Petitioner to cross-examine the witnesses as
Petitioner had failed to avail such opportunity during fifth meeting, the
Committee thought it prudent to grant one more opportunity to him by
inquiring with him during the sixth inquiry committee meeting as to
whether he was desirous of cross-examining the witness. When the
Petitioner answered the query in the affirmative, the Management
recalled 11 witnesses for cross-examination by the Petitioner. Petitioner
cross-examined them without expressing any reservation or inability to
conduct the cross-examination. He never complained that he was
neither ready or incapable of cross-examining the witnesses. He
personally conducted cross-examination of all the witnesses without
any demur.
16. It is contended on behalf of the Petitioner that the Inquiry
Committee did not record examination-in-chief of management
witnesses. In domestic inquiry, strict rules of evidence do not apply. It is
permissible in a domestic inquiry to invite attention of a witness to
prerecorded statements/complaints by asking him to confirm its
contents. Therefore, instead of repeating the entire story in
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examination-in-chief, it is permissible to take pre-recorded statements
of witnesses on record, once the witnesses confirm making those
statements. Therefore, the contents of pre-recorded statements/
complaints become part of evidence and it is not necessary that a
witness in domestic inquiry must repeat contents of pre-recorded
statements. It therefore cannot be contended that proper examination-
in-chief of the witnesses was not conducted by the Inquiry Committee.
17. It is also sought to be contended that the Petitioner was not
supplied with copies of statements of the said witnesses and in absence
of furnishing copies of such statements, due opportunity of cross-
examination was denied to the Petitioner. However, the minutes of sixth
Inquiry Committee meeting dated 8 August 2000 would indicate that
the Petitioner never complained to the Inquiry Committee that he did
not receive copies of statements/complaints of witnesses, which were
taken on record. The factum of conduct of detailed cross-examination of
each of the witnesses would completely falsify the contention that he
did not receive copies of statements of the said witnesses. If Petitioner
was not provided the pre-recorded statements, how he was able to
cross-examine the witness becomes a mystery. It is therefore difficult to
believe that there is any element of truth in the allegation of non-supply
of statements of the witnesses.
18. It is sought to be suggested that the Petitioner was not
provided with copy of summary of inquiry proceedings as mandated
under provisions of Rule 37(4) of MEPS Rules. In the compilation of
documents, Petitioner has placed on record copy of communication
dated 11 August 2000, by which summary of the inquiry proceedings
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together with copies of the proceedings of the inquiry were forwarded
to the Petitioner. Petitioner however contends that he received the
communication dated 11 August 2000 on 4 September 2000 and did
not get an opportunity of submitting his representation against such
summary. However, it is seen that this point is not raised by the
Petitioner before School Tribunal. The date of receipt of communication
dated 11 August 2000 becomes a question of fact which ought to have
been raised before the School Tribunal and cannot be raised directly
before this Court in the present petition. School Tribunal in the present
case would be the fact finding Court and in absence of any dispute
before the fact finding Court about date of service of communication
dated 11 August 2000 on 4 September 2000, the question cannot be
raised in a petition filed under Article 227 of the Constitution of India.
It otherwise becomes impossible to believe that it would take almost a
month for service of letter dated 11 August 2000 within city of Mumbai.
I am therefore not inclined to accept the contention about the violation
of provisions of Rule 37(4) of the MEPS Rules.
19. Coming to the evidence recorded during the course of inquiry, in
my view, this is not a case where there is total absence of evidence for
tracing an element of perversity in the findings of the Inquiry
Committee. The charges levelled against the Petitioner have already
been culled out above. One of the gross charges levelled against the
Petitioner was that on 11 November 1998, he drew nude picture of lady
on the blackboard in class of standard 8. Upon one girl student raising
an objection, Petitioner told her to shut up and threatened to draw her
picture. In the inquiry, the management examined Smt. Parvati C.
Mangaonkar, mother of the concerned girl student. She has been cross-
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examined by the Petitioner. Petitioner asked the witness during cross-
examination about the exact incident narrated by her daughter and the
parent deposed before the Inquiry Committee that the Petitioner had
drawn picture of nude woman on the blackboard. Petitioner sought to
make a suggestion that he had drawn a picture of a lady watering the
plants, to which the parent gave a reply during her cross-examination
that it was not necessary to draw picture of nude woman while
explaining the concept of watering of plants. In my view therefore the
serious charge of Petitioner drawing picture of a nude woman on the
blackboard of 8th standard “D” division is clearly proved. So far as the
charge of beating one of the student is concerned, there is enough
evidence on record by various witnesses about one student being beaten
up with the stick by the Petitioner and his fingers being swollen. In my
view therefore, there is sufficient evidence on record to prove various
charges levelled against the Petitioner and the case does not involve
total absence of evidence. It is repeatedly held by the Apex Court that
so long as there is some evidence on record finding of guilt cannot be
interfered with by Courts and Tribunals.
20. The test of proof of charges in a domestic inquiry is
preponderance of probability and not proof beyond reasonable doubt. It
would be apposite to refer the judgment of a Kuldeep Singh vs. The
Commissioner of Police and ors.5 in which it is held in paragraph No.10
as under:
“10. A broad distinction has, therefore, to be maintained between the
decisions which are perverse and those which are not. It a decision is arrived
at on no evidence or evidence which is thoroughly unreliable and no
5
1999(2) SCC 10Priya Soparkar Page No. 15 of 24
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11-WP-1754-2006reasonable person would act upon it, the order would be perverse. But if
there is some evidence on record which is acceptable and which could be
relied upon, howsoever compendious it may be, the conclusions would not be
treated as perverse and the findings would not be interfered with.”
(emphasis added)
21. In State of Haryana vs. Rattan Singh6, it is held that even hear-say
evidence is admissible in domestic inquiry, provided it has reasonable
nexus and creditability. The Apex Court has reiterated that so long as
there is some evidence on record, charges in the domestic inquiry can
be held to be proved. The Apex Court held in paragraphs No.4 of the
judgment in Rattan Singh as under:
4. It is well settled that in a domestic enquiry the strict and sophisticated
rules of evidence under the Indian Evidence Act may not apply. All materials
which are logically probative for a prudent mind are permissible. There is no
allergy to hearsay evidence provided it has reasonable nexus and credibility.
It is true that departmental authorities and Administrative Tribunals must be
careful in evaluating such material and should not glibly swallow what is
strictly speaking not relevant under the Indian Evidence Act. For this
proposition it is not necessary to cite decisions nor text books, although we
have been taken through case-law and other authorities by counsel on both
sides. The essence of a judicial approach is objectivity, exclusion of
extraneous materials or considerations and observance of rules of natural
justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias
or surrender of independence of judgment vitiate the conclusions reached,
such finding, even though of a domestic tribunal, cannot be held good.
However, the courts below misdirected themselves, perhaps, in insisting that
passengers who had come in and gone out should be chased and brought
before the tribunal before a valid finding could be recorded. The ‘residuum’
rule to which counsel for the respondent referred, based upon certain
passages from American Jurisprudence does not go to that extent nor does
the passage from Halsbury insist on such rigid requirement. The simple point
is, was there some evidence or was there no evidence — not in the sense of
the technical rules governing regular court proceedings but in a fair
commonsense way as men of understanding and worldly wisdom will accept.
Viewed in this way, sufficiency of evidence in proof of the finding by a
domestic tribunal is beyond scrutiny. Absence of any evidence in support of a
finding is certainly available for the court to look into because it amounts to
an error of law apparent on the record. We find, in this case, that the
evidence of Chamanlal, Inspector of the Flying Squad, is some evidence
6
AIR 1977 SC 1512
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which has relevance to the charge levelled against the respondent. Therefore,
we are unable to hold that the order is invalid on that ground.
(emphasis supplied)
22. In Balkrushna Mishra (supra), the Apex Court has reiterated the
principle that even hearsay evidence is admissible in a domestic inquiry.
It is held in paragraphs Nos. 8, 9 and 10 as under:
“8. If the decision of the learned Tribunal is judged keeping in view
the aforesaid dictum of the Supreme Court, it would appear that the
decision is not perverse and it is not that the finding is not supported
by any evidence, or is entirely opposed to the whole body of evidence
adduced. In fact there is evidence on record and the learned Tribunal
has accepted the same. Even though there can be any possibility to
arrive at a different conclusion on the same evidence, this Court
cannot substitute its conclusion on facts. In an application under
Articles 226 and 227, the High Court cannot sit in appeal ever the
findings recorded by the competent Tribunal. It cannot reappreciate
the evidence. It would however, be justified in setting aside the
finding if it is based on no evidence.
9. It is contended on behalf of the petitioner that the evidence of M.W.
1 to the extent that the petitioner had told his wife about the amount,
is not admissible in evidence as the same is hearsay. In our opinion,
such a statement cannot be said to be hearsay. M.W. 1 states about the
enquiry made by the wife of the petitioner while he handed over the
money to her. The petitioner himself cross-examined, but did not
challenge the aforesaid statement. Even assuming that it is hearsay
evidence, there is no bar on the part of the competent authority to
rely on the same in a disciplinary proceeding. Law is well settled that
the Evidence Act has no application to such a proceeding. If the
Evidence Act has no application then the principles of that Act have
equally no strict application. It is the principle of natural justice which
should be followed (See Harihar Das v. I.G. of Police, Orissa(2). In
that case, a question arose whether hearsay evidence was admissible
in a disciplinary proceeding. Following two English decisions, this
Court came to the conclusion that hearsay evidence was admissible
before a domestic tribunal provided the essential condition that an
opportunity was afforded to the parties to comment and contradict
such evidence was fulfilled. This view has also been reaffirmed in
another decision of this Court in Ramesh Chandra Behera v. State of
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the petitioner has no force.
10. On the aforesaid analysis, we hold that there is no justifiable
ground to interfere with the decision of the learned Tribunal and this
writ petition is without any merit. In the result, the writ petition fails
and is, accordingly, dismissed. In the circumstances of the case, we
make no order as to costs.”
(emphasis and underlining added)
23. Applying the above principles to the facts of the present case, it is
seen that the findings of the inquiry committee can be sustained by
applying the test of preponderance of probability. Even hearsay
evidence of mother of girl student would become admissible in the
present case. There is some evidence on record to sustain the charges
and therefore the findings of the inquiry committee do not suffer from
the vice of perversity.
24. Another point strenuously urged by Mr. Bhavke is submission of
two distinct reports by the Inquiry Committee members which,
according to him is in violation of the judgment of the Apex Court in
Vidya Vikas Mandal (supra). The Apex Court has held in paragraph
No.9 of the judgment as under:
9. As rightly pointed out by the learned counsel for the appellants,
Rule 37(6), which is mandatory in nature, has not been strictly
complied with. The inquiry committee comprising of three members,
as already noticed, only one member nominated by the Management
has submitted his inquiry report within the time stipulated as per Rule
37(6) and admittedly, the other two members nominated by the
employee and an independent member have not submitted their
report within the time prescribed under Rule 37(6). However, the
learned Judges of the Division Bench, though noticed that the two
members out of three found the employee not guilty, failed to
appreciate that the said findings by the two members of the
Committee were submitted after the expiry of the period prescribed
under Rule 37(6). In our opinion, the report submitted by individualPriya Soparkar Page No. 18 of 24
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11-WP-1754-2006members is also not in accordance with the Rules. When the
Committee of three members is appointed to inquire into a particular
matter, all the three members should submit their combined report
whether consenting or otherwise. Since the report is not in accordance
with the mandatory provisions, the Tribunal and the learned Single
Judge and also the Division Bench of the High Court have committed
a serious error in accepting the said report and acting on it and
thereby ordering the reinstatement with back wages. Since the
reinstatement and back wages now ordered are quite contrary to the
mandatory provisions of Rule 37(6), we have no hesitation in setting
aside the order passed by the Tribunal, and learned Single Judge and
also of the Division Bench of the High Court. In addition, we also set
aside the order passed by the Management based on the report
submitted by the single member of the Committee, which is also quite
contrary to the Rules.
25. However, in case before the Apex Court in Vidya Vikas Mandal,
only one member out of three members of the Inquiry Committee
nominated by the management had submitted his inquiry report within
the stipulated time and the other two members had not submitted the
report. The main flaw noticed by the Apex Court was that the report of
the two members was submitted after the time limit prescribed by the
Rule 37(6) of the MEPS Rules. It is in the light of this factual position
where the three committee members wrote individual reports on
different dates that the Apex Court has held that all the three members
ought to have submitted their combined report, whether consenting or
otherwise.
26. In the present case, it appears that at the end of the inquiry, the
summary was jointly prepared by all the three members of the Inquiry
Committee. The seventh meeting of the Inquiry Committee was
conducted on 11 August 2000, when the Committee was to meet for
preparing inquiry report. It appears that despite being invited to attend
the seventh meeting on 11 August 2000, Petitioner’s nominee
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Mr. Jangle refused to acknowledge the notice of inquiry on 11 August
2000 and refused to attend the same. Mr. Jangle did not make any
request for adjournment of the meeting nor showed any interest in
participating in the process of deliberations and discussions for
preparation of inquiry report. It appears that Mr. Jangle simply refused
to sit with other two members for preparation of the report. In such
circumstances, question arises as to whether the report of the other two
committee members would get automatically vitiated if the third
member deliberately refuses to prepare a joint report. The findings
rendered by the Apex Court in Vidya Vikas Mandal must be understood
in the context in which they are made. As observed above, observations
of the Apex Court are made in the context of three members of the
Committee submitting individual reports on three different dates.
27. The judgment of the Apex Court in Vidya Vikas Mandal is rendered
in the peculiar facts where three Inquiry Committee members had
written three distinct reports at different times and there was no
deliberation amongst them. In the present case, the nominee of the
Petitioner was invited for deliberations, but he refused to participate in
such deliberations. Therefore, the deliberations took place between the
remaining two members of the Inquiry Committee. The nominee of the
Petitioner, who was expected to write a joint report, deliberately
submitted his individual report on 29 August 2000 after the report of
the two committee members was prepared on 25 August 2000.
28. It is well settled position of law that observations in a judgment are
not to be construed as statute and the observations must be read in the
context in which they appear to have been stated. In Haryana Financial
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Corporation and another Vs. Jagdamba Oil Mills and another 7 the Apex
Court held as under :-
19. Courts should not place reliance on decisions without discussing as to
how the factual situation fits in with the fact situation of the decision on
which reliance is placed. Observations of courts are not to be read as Euclid’s
theorems nor as provisions of the statute. These observations must be read in
the context in which they appear. Judgments of courts are not to be construed
as statutes. To interpret words, phrases and provisions of a statute, it may
become necessary for Judges to embark upon lengthy discussions but the
discussion is meant to explain and not to define. Judges interpret statutes,
they do not interpret judgments. They interpret words of statutes, their words
are not to be interpreted as statutes. In London Graving Dock Co.
Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (at p. 761) Lord
MacDermot observed : (All ER p. 14C-D)
“The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J., as though they were part of an Act of
Parliament and applying the rules of interpretation appropriate
thereto. This is not to detract from the great weight to be given to the
language actually used by that most distinguished Judge.”
21. Circumstantial flexibility, one additional or different fact may make a
world of difference between conclusions in two cases. Disposal of cases by
blindly placing reliance on a decision is not proper.
29. The above principle has been reiterated by the Apex Court in
Ashwani Kumar Singh Vs. U.P. Public Service Commission and others 8.
Therefore the judgment of the Apex Court in Vidya Vikas Mandal
cannot be read in support of an absolute proposition of law that in
every case, failure to submit joint inquiry report would vitiate the
inquiry.
30. It must also be noted that in the given case, there is a possibility
that the ratio of the judgment of the Apex Court in Vidya Vikas Mandal
being deliberately misused by delinquent employee with a view to
vitiate the inquiry. The delinquent teacher can request his nominee on
7
(2002) 3 SCC 496
8
(2003) 11 SCC 584
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the Inquiry Committee not to participate in the discussions and
deliberately submit a separate report with a view to attract ratio of
judgment in Vidya Vikas Mandal. Thus, vitiation of inquiry by way of
writing of independent report would become a matter of choice. The
ratio of the judgment in case of Vidya Vikas Mandal is not for
encouraging these kinds of tendencies. Therefore, in every case where
all the three members of the Inquiry Committee are invited to
deliberate for preparation of inquiry report and if one of the members
of the Committee fails or refuses to participate in such deliberations (for
whatever reason), mere non-submission of joint report cannot become a
ground for vitiation of the inquiry. In the present case, Petitioner’s
nominee was invited to attend the deliberations for preparation of joint
report, but he deliberately refused to attend the same and submitted his
individual dissenting report 4 days later. Therefore, there is no violation
of ratio of the judgment in Vidya Vikas Mandal. I am therefore not
inclined to hold that there is any defect in report of the Inquiry
Committee for this Court to interfere in exercise of jurisdiction under
Article 227 of the Constitution of India.
31. It must also be borne in mind that mere infraction of procedural
provision does not ipso facto vitiate the inquiry unless prejudice is
shown to have been caused to the delinquent employee. There is no
dearth of decisions on this principle of law. It would be apposite to
make a reference to the judgment of the Apex Court in the case of State
of Uttar Pradesh Vs. Sudhir Kumar Singh and others 9 in which the Apex
Court has held as under:
42. An analysis of the aforesaid judgments thus reveals:
9
(2021) 19 SCC 706
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11-WP-1754-200642.1. Natural justice is a flexible tool in the hands of the judiciary to
reach out in fit cases to remedy injustice. The breach of the audi
alteram partem rule cannot by itself, without more, lead to the
conclusion that prejudice is thereby caused.
42.2. Where procedural and/or substantive provisions of law embody
the principles of natural justice, their infraction per se does not lead to
invalidity of the orders passed. Here again, prejudice must be caused
to the litigant, except in the case of a mandatory provision of law
which is conceived not only in individual interest, but also in public
interest.
42.3. No prejudice is caused to the person complaining of the breach
of natural justice where such person does not dispute the case against
him or it. This can happen by reason of estoppel, acquiescence, waiver
and by way of non-challenge or non-denial or admission of facts, in
cases in which the Court finds on facts that no real prejudice can
therefore be said to have been caused to the person complaining of
the breach of natural justice.
42.4. In cases where facts can be stated to be admitted or
indisputable, and only one conclusion is possible, the Court does not
pass futile orders of setting aside or remand when there is, in fact, no
prejudice caused. This conclusion must be drawn by the Court on an
appraisal of the facts of a case, and not by the authority who denies
natural justice to a person.
42.5. The “prejudice” exception must be more than a mere
apprehension or even a reasonable suspicion of a litigant. It should
exist as a matter of fact, or be based upon a definite inference of
likelihood of prejudice flowing from the non-observance of natural
justice.
32. In the present case, Petitioner is provided due opportunity of
defence. No prejudice is shown to have been caused to him even if it
was to be held that there was any breach of principles of natural justice
which ultimately find embedded in provisions of Rule 37 of the MEPS
Rules.
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33. Coming to the aspect of proportionality of penalty, Petitioner faced
grave charges, which are proved in the inquiry. The penalty is thus
commensurate with the misconduct proved against him.
34. After considering the overall conspectus of the case, I am of the
view that no case is made out by the Petitioner for interference in the
order passed by the School Tribunal. The Petition must fail. It is
accordingly dismissed. There shall be no order as to costs.
(SANDEEP V. MARNE, J.)
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