SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL & ORS.versusVIDYA (DEAD) THRU LRS. & ANR.

                        [2019] 9 S.C.R. 933                             933


  SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL & ORS.                          A
                                 v.
              VIDYA (DEAD) THRU LRS. & ANR.
               (Civil Appeal Nos. 5296-5297 of 2019)
                           JULY 09, 2019                                B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                INDIRA BANERJEE, JJ.]
       Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 – rr.36 and 37(6) – Inquiry Committee and
                                                                        C
Procedure of Inquiry – Original respondent (since deceased) was
terminated from the services after a disciplinary enquiry – Appeal
was filed before the School Tribunal, however, same was rejected –
Writ petition was filed by the respondent – High Court held that
there was breach of r.37(6) of the Rules, 1981 and order of the
termination was set aside – Review application filed by the             D
appellants was dismissed – On appeal, held: The report of the
Enquiry Committee was duly signed by all the three members – Two
members concluded that the charges were duly proved – The third
member of the Enquiry Committee, however, recorded his dissent
while signing the Report – It was evident that the requirements of
                                                                        E
r.37(6) were duly fulfilled – Also, High Court did not consider all
the contentions on behalf of the contesting parties – Thus, the basis
on which the High Court allowed the writ petition was misconceived
– However, remanding the case would not serve the ends of justice
since employee has died and proceeding is pursued by her legal
representatives – Therefore, appellant-management directed to pay       F
Rupees one lakh fifty thousand to the respondents purely as an ex
gratia payment on humanitarian grounds in full and final settlement.
       The original respondent was engaged as a head mistress
by the third appellant. A charge-sheet was issued to the employee
levelling many charges including a charge of misappropriation.          G
A disciplinary inquiry was initiated against the respondent.
A combined report was submitted by the Enquiry Committee.
One of the three members of the Committee expressed a
dissenting view. The services of the employee came to be
terminated. An appeal was filed before the School Tribunal,
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A     however, same was rejected. Following, a writ petition was filed
      by the respondent. High Court held that there was a breach of
      rule 37(6) by the Committee, hence, order of the termination
      was set aside. A review application filed by the appellants was
      dismissed. Hence the present appeals.
B          Disposing of the appeals, the Court
            HELD: 1. The Report of the Enquiry Committee was duly
      signed by all the three members. Two members concluded that
      the charges were duly proved. The third member of the Enquiry
      Committee, however, recorded his dissent while signing the
C     Report. It is evident that the requirements of Rule 37(6) of the
      Maharashtra Employees of Private Schools (Conditions of
      Service) Rules 1981 were duly fulfilled. [Para 10] [938-G]
             2. The basis on which the High Court allowed the writ
      petition filed by the employee was misconceived. The impugned
D     judgments and orders of the High Court are accordingly set aside.
      The High Court has also observed, in the course of its judgment,
      that the learned counsel appearing on behalf of the contesting
      parties had made submissions on “various points”. The High
      Court did not consider it appropriate to deal with all the
      contentions on the basis that the decision of this Court in Vidya
E     Vikas Mandal governs the case. This Court would have ordinarily
      remanded the proceedings to the High Court for considering
      those grounds of challenge. However, the respondents have
      stated before the Court that an order of remand, at this stage,
      would not serve the ends of justice since the employee has died
F     and the proceedings are being pursued by her legal
      representatives. Hence, the respondents have submitted that it
      would be appropriate if the management pays some ex gratia
      amount in full and final settlement. Therefore, an amount of
      Rupees one lakh fifty thousand shall be paid to the respondents
      purely as an ex gratia payment on humanitarian grounds in full
G     and final settlement. [Paras 13-15][940-C-G]
           Vidya Vikas Mandal v. the Education Officer
           2007 (2) SCALE 589 : [2007] 2 SCR 340
           – distinguished.

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       SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL v. VIDYA (D)                    935
                           THRU LRS.


                             Case Law Reference                              A
         [2007] 2 SCR 340           distinguished          Para 5
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5296-
5297 of 2019
       From the Judgment and Orders dated 16.12.2015 and 01.03.2017          B
of the High Court of Judicature of Bombay, Nagpur Bench, Nagpur in
Writ Petition No. 3143 of 2006 and in Civil Application (O) No. 1071 of
2016 in Writ Petition No.3143 of 2006 respectively.
      Manish Kumar Gupta, T. R. B. Sivakumar, Advs. for the
Appellants.                                                                  C
         Pratik R. Bombarde, Jitendra Kumar, Advs. for the Respondents.
         The Judgment of the Court was delivered by
         DR DHANANJAYA Y CHANDRACHUD, J.
         1. Leave granted.                                                   D
       2, These appeals arise from the impugned judgments and orders
of the High Court of Judicature at Bombay dated 16 December 2015
and 1 March 2017.
       3. The dispute relates to the termination of the services of the
original respondent (since deceased) after a disciplinary enquiry. The       E
original respondent was engaged as a Head Mistress by the third appellant,
Anjanabai Zode Kanya Vidyalaya, Ashti in the District of Wardha in
Maharashtra. A charge-sheet was issued to the employee on 15 January
1998 levelling as many as 53 charges, including a charge of mis-
appropriation. An Enquiry Committee of three members was constituted         F
under Rule 36 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules 19811. Following the disciplinary enquiry,
a combined report was submitted by the Enquiry Committee on 29 June
1998. One of the three members of the Committee expressed a dissenting
view. The services of the employee came to be terminated on 3 July
1998. An appeal was filed before the School Tribunal. The Tribunal, by       G
its decision dated 27 April 2005, rejected the appeal following which a
writ petition was filed by the respondent before the High Court.

1
    “1981 Rules”

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936              SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A            4. The sole ground which weighed with the High Court was that
      there was nothing on record to show that the three members of the
      Enquiry Committee had assembled and carried out deliberations before
      preparing and submitting their respective reports. Hence, there was a
      breach of Rule 37(6). The order of termination was set aside. However,
      since the employee had retired on attaining the age of superannuation in
B
      2009 and had died on 26 September 2013, the management was directed
      to pay 50% of the arrears of salary for the period from 3 July 1998 until
      August 2009. The claim of the respondents for family pension was
      denied. A review application filed by the appellants was dismissed on
      1 March 2017.
C            5. Assailing the judgment of the High Court, learned counsel
      appearing on behalf of the appellants submits that the requirements of
      Rule 37(6) of the 1981 Rules were duly fulfilled. It was urged that the
      decision of this Court in Vidya Vikas Mandal v the Education Officer2is
      clearly distinguishable since, while construing the provisions of Rule 37(6)
D     of the 1981 Rules, it was found that the findings by two members of the
      three member Committee had been submitted after the period prescribed
      to submit the report had expired. This Court held, it was urged, that
      when a Committee of three members is appointed to enquire into a
      particular matter, all three members should submit a combined report,
      whether consenting or otherwise. Hence, the decision is
E     distinguishable.
            6.Learned counsel appearing for the appellants produced a
      compilation of documents in support of the submission that the Enquiry
      Committee met on several prior dates. After a meeting on 14 June
      1998, copies of the findings were received on 18 June 1998. On 29 June
F     1998, the Report, which was compiled by the Convener, was read over
      before the Committee and was approved with certain amendments.
      Hence, it was urged that the requirement of Rule 37(6) of the 1981
      Rules has been fulfilled.
            7. On the other hand, learned counsel appearing on behalf of the
G     respondents adverted to an affidavit which was filed by the third member
      of the Committee before the Tribunal raising his objections to the
      procedure which was followed by the Committee, in support of the
      submission that the requirements of Rule 37(6) were not fulfilled.
      2
          2007(2) SCALE 589
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     SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL v. VIDYA (D)                     937
        THRU LRS. [DR DHANANJAYA Y CHANDRACHUD, J.]


      8. From the record which has been produced before the Court, it       A
emerges that on 18 June 1998, the following minutes were recorded by
the Enquiry Committee:
      “(2) Subject No.2 : Submission of findings of the Committee
      Members.
      Explanation: As resolved in the meeting dtd. 14-6-98, the copies      B
      of the findings of all the three members of the Committee are
      received.
      (1) Shri A.S. Gavarshettiwar – Total Pages 5 of the copies of
      findings.
                                                                            C
      (2) Shri Mukteda Hasan – Total 10 pages of his findings
      (3) Shri A.R. Zode – Total Pages
      The Members of the Committee has taken the decision that, instead
      of writing all these findings in the Proceeding Book, it should be
      kept in the concerned file for reference and for having decided       D
      so, there is need to take its entry in it which is resolved by the
      Committee unanimously.”
      Thereafter, it was agreed that:
      “It is unanimously resolved that, the Convener should prepare the
      Compiled Report and Decision from the findings received and by        E
      putting up it in the next meeting of the Inquiry Committee dtd.
      29-6-98 and obtaining approval of the Committee to it, it should be
      sent to the Management Committee.”
       9. Subsequently, on 29 June 1998, the Enquiry Committee recorded
the following minutes:                                                      F

      “Subject No.(2): To submit the Compiled Report as per findings
      received from the Members of the Inquiry Committee and to obtain
      approval to it.
      Details: The Compiled Report prepared by A.R. Zode, Convener          G
      of the above Inquiry Committee was put up and read over before
      the Committee. After reading, it was approved with some
      amendments.


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938            SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A           Subject No.(3): To approve the Final Report of the above
            Inquiry Committee with findings and Decisions and
            recommendations therein.

            Details: The Final Report prepared by Shri A.R.Zode, Convener
            of the above Inquiry Committee on the basis of the finding was
B           read over with the Decisions and Recommendations before the
            Meeting. Upon it, two Members of the Inquiry Committee, namely,
            Shri A.R.Zode and Shri Gavarshettiwar have decided that Smt.
            V.D. Deshpande is guilty. There is unanimity of these two
            Members in this regard. As per Shri Mukteda Hasan, the decision
C           as taken is not proper and the Head Mistress is guiltless. However,
            as per the Final Report, findings, decision and recommendations
            of the Inquiry Committee it is passed with unanimity of the above
            two members of the Inquiry Committee. Subject No.4: Conducted
            and completed the proceeding of the Inquiry Committee as per
            the Rules. Therefore, this was the Final Meeting. It is unanimously
D           resolved in this meeting that the further action which is to be
            taken henceforth under the Rules in the Maharashtra Employees
            of Private Schools (Conditions of Service) Regulations, 1981 should
            be taken by the Convener.

                   As the proceeding in respect of the inquiry by the Inquiry
E           Committee before the today’s Final Meeting is completed, the
            Convener of the Inquiry Committee has paid thanks too all the
            Members and as all the Members have given cooperation to the
            Inquiry Committee by remaining present in all the meetings within
            time, the Convener Shri A.R. Zode, by paying thanks to all the
F           Members of the Inquiry Committee and all the concerned, has
            declared that this Final Meeting is over.”

              10. The Report of the Enquiry Committee dated 29 June 1998
      was duly signed by all the three members. Two members concluded
      that the charges were duly proved. The third member of the Enquiry
G     Committee, however, recorded his dissent while signing the Report. It is
      evident that the requirements of Rule 37(6) of the 1981 Rules were duly
      fulfilled. Rule 37(6) of the Rules provides as follows:

            “37(6). On receipt of such further explanation or if no explanation
            is offered within the aforesaid time the Inquiry Committee shall
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     SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL v. VIDYA (D)                        939
        THRU LRS. [DR DHANANJAYA Y CHANDRACHUD, J.]


      complete the inquiry and communicate its findings on the charges         A
      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 acknowledgment
                                                                               B
      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 acknowledgment 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        C
      of decision of the Inquiry Committee, by registered post
      acknowledgment due. The Management shall also endorse a copy
      of its order to the Education Officer or the Deputy Director as
      the case may be.”

       11. In the decision of this Court in Vidya Vikas Mandal (supra),        D
two of the three members forming a part of the Committee had submitted
the report beyond the time period stipulated, while only one member had
submitted the report within the period prescribed. This Court observed,
thus:

      “9. As rightly pointed out by the learned counsel for the appellants,    E
      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      F
      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          G
      period prescribed under Rule 37(6). In our opinion, the report
      submitted by individual members is also not in accordance with
      the Rules. When the Committee of three members are appointed
      to inquire into a particular matter, all the three should submit their
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940            SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           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 acted on it and thereby ordering the reinstatement with
            back wages...”
B
             12. The factual position in Vidya Vikas Mandal (supra) is clearly
      distinguishable from the facts of the present case. We have already
      noted that the requirements of Rule 37(6) of the 1981 Rules were fulfilled.
            13. For the above reasons, we are of the view that the basis on
C     which the High Court allowed the writ petition filed by the employee
      was misconceived. The impugned judgments and orders of the High
      Court are accordingly set aside.
             14. The High Court has also observed, in the course of its judgment,
      that the learned counsel appearing on behalf of the contesting parties
D     had made submissions on “various points”. The High Court did not
      consider it appropriate to deal with all the contentions on the basis that
      the decision of this Court in Vidya Vikas Mandal (supra) governs the
      case. We would have ordinarily remanded the proceedings to the High
      Court for considering those grounds of challenge. However, learned
      counsel appearing on behalf of the respondents has stated before the
E     Court that an order of remand, at this stage, would not serve the ends of
      justice since the employee has died and the proceedings are being pursued
      by her legal representatives. Hence, learned counsel appearing on behalf
      of the respondents has submitted that it would be appropriate if the
      management pays some ex gratia amount in full and final settlement.
F            15. Learned counsel appearing on behalf of the appellants has
      stated that the retiral dues of the deceased employee of approximately
      Rupees eight lakhs were duly paid and she was gainfully employed after
      her termination. Be that as it may, it has been stated that an amount of
      Rupees one lakh fifty thousand shall be paid to the respondents purely
G     as an ex gratia payment on humanitarian grounds in full and final
      settlement.
            16. Acceding to the request, we close the proceedings in the above
      terms. The aforesaid payment shall be made over to the respondents

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     SHRI YOGIRAJ SHIKSHAN PRASARAK MANDAL v. VIDYA (D)                        941
        THRU LRS. [DR DHANANJAYA Y CHANDRACHUD, J.]


within a period of one month from the date of receipt of a certified copy      A
of this order.
      17. The appeals are accordingly disposed of. There shall be no
order as to costs.

                                                                               B
Ankit Gyan                                              Appeals disposed of.




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