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TMI Blog2013 (4) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... ees, as a large number of cases had been filed against the Management Committee without impleading the State of Maharashtra, though the same was a necessary party, as the school was a government-aided school. Rules 36 and 37 of the Rules 1981, which prescribe the procedure of holding an enquiry have been violated. The charges levelled against the appellant were entirely vague, irrelevant and unspecific. As per statutory rules, the appellant was not allowed to be represented by another employee. Thus, the procedure prescribed under Rule 57(1) of the Rules 1981 stood violated. No chargesheet containing the statement of allegations was ever served. As the Tribunal as well as the learned Single Judge have examined all the charges on merit and also found that the enquiry has not been conducted as per the Rules 1981, it was not the cause of the Management Committee which had been prejudiced, rather it had been the other way around. In such a fact-situation, it was not necessary for the Division Bench to permit the respondents to hold a fresh enquiry on the said charges and that too, after more than a decade of the retirement of the appellant. Appeal succeeds and is allowed. - CIVIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id enquiry report was accepted by the Management Committee, and the services of the appellant were terminated vide order dated 24.5.2002 w.e.f. 31.5.2002. F. Aggrieved, the appellant challenged the said termination order by filing Appeal No.65 of 2002, before the Tribunal. The respondents contested the appeal. However, upon reaching the age of superannuation, the appellant stood retired on 30.9.2002. G. The Tribunal vide judgment and order dated 19.10.2002 held, that none of the charges levelled against the appellant stood proved, and that the enquiry had not been conducted according to the Rules 1981. Thus, the termination order against the appellant was quashed. H. Aggrieved, the respondents-management filed Writ Petition No.1849 of 2003 before the High Court, and the learned Single Judge decided the said writ petition vide judgment and order dated 20.4.2011, upholding the judgment of the Tribunal, and found the enquiry to be entirely defective and thus, illegal. I. The respondents-management filed Letters Patent Appeal No.171 of 2011, and the Division Bench too, upheld the judgment of the learned Single Judge, as well as that of the Tribunal, but simultaneously also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry was not properly conducted, the Court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the concerned case to the disciplinary authority, to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161). Enquiry at belated stage: 8. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. (Emphasis added) 10. Where the chargesheet is accompanied by the statement of facts and the allegations are not specific in the chargesheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a chargesheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961. (Emphasis added) While deciding the said issue, the Court placed reliance on the judgment in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27. 14. In State of Punjab v. Khemi Ram, AIR 1970 SC 214, this court observed: There can be no doubt that if disciplinary action is sought to be taken against a government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein. 15. In Kirti Bhusan Singh v. State of Bihar Ors., AIR 1986 SC 2116, this Court held as under: . We are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellant: (a) Charge No.1:-The first respondent did not submit dead stock verification report in spite of several letters. (b) Charge No.2:-The first respondent did not submit the documents such as cash books, ledgers and voucher files in spite of demands made by the management. (c) Charge No.3:- relates to not calling School Committee meeting and causing loss of ₹ 48851/- as no timely approval was obtained for that expenditure from the school committee. (d) Charge No.4:- The first respondent did not send appointment proposal dated 4.9.2000 of Mr. Ghadge for approval to the Education Officer (Secondary) Z.P. Solapur and salary of the said teacher could not be paid . (e) Charge No.5:- The Respondent prepared budget 2001-2002 and forwarded to the management directly without obtaining sanction of the School Committee. (f) Charge No.6:- The first respondent obstructed working of the management and the School Committee on the ground that he had challenged the election of the office bearers before the Joint Charity Commissioner, Latur even though there was no stay/injunction. (g) Charge No.7:- The first respondent did not attend any of the 11 meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he members seem to have anxious to hold the guilty of the charges to the appellant. They have based their conclusion on some thread of evidence ignoring all other circumstances and evidence in favour of appellant The Tribunal further stated as under: (i) Charge No.1, is in respect of not submitting the documents papers asked by the Management particularly pertaining to dead stock. (ii) Charge No.2 is regarding the Registers and journals regarding school fees, voucher files etc. The accounts of school are audited by the authorized auditor. Under these circumstances, calling these record seems to be only for finding loop holes. This is a sort of interference of the Management in day-to-day work of the school, which is unwarranted. In spite of this, the explanation shows that there is sufficient compliance of direction and there is no insubordination. (iii) Charge No.3, is not calling meetings of school committee as per code .and the explanation submitted by appellant not calling the meetings is acceptable. (iv) Charge No.4, is in respect of not forwarding proposal of Shikshan Sevek to the Education Officer. The reasons explained by the appellant are acceptable. (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Chief Executive Officer, from amongst a panel of teachers who have been awarded National/State awards. In the instant case, there was only a two member committee. The procedure prescribed under the Rules is based on the Principles of Natural Justice and fair play, to ensure that an employee of a private school, may not be condemned unheard. It is pertinent to note that the Management committee failed to prove even a single charge against the appellant. 22. Therefore the Tribunal, as well as the learned Single Judge have both made it clear that the inquiry had not been conducted in accordance with the provisions of Rules 36 and 37 of the Rules 1981. However, they themselves have dealt with each and every charge, and have recorded their findings on merit. The present case is certainly not one where a punishment has been set aside only on a technical ground, that the inquiry stood vitiated for want of a particular requirement. Thus, in light of such a fact situation, the Division Bench has committed an error by giving liberty to the respondents to hold a fresh enquiry. 23. The Division Bench after examining the case, held as under: (i) If there was defect found in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant and many other employees, as a large number of cases had been filed against the Management Committee without impleading the State of Maharashtra, though the same was a necessary party, as the school was a government-aided school. Rules 36 and 37 of the Rules 1981, which prescribe the procedure of holding an enquiry have been violated. The charges levelled against the appellant were entirely vague, irrelevant and unspecific. As per statutory rules, the appellant was not allowed to be represented by another employee. Thus, the procedure prescribed under Rule 57(1) of the Rules 1981 stood violated. No chargesheet containing the statement of allegations was ever served. A summary of the proceedings, alongwith the statements of witnesses, as is required under Rule 37(4) of the Rules 1981, was never forwarded to the appellant. He was not given an opportunity to explain himself, and no charge was proved with the aid of any documentary evidence. There existed no charge against the appellant regarding his integrity, embezzlement or mis-appropriation. Therefore, the question of mis-appropriation of ₹ 4,900/- in respect of a telephone bill remained entirely irrelevant. Furthermore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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