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2013 (4) TMI 840 - SUPREME COURT

2013 (4) TMI 840 - SUPREME COURT - 2013 AIR 2098, 2013 (6) SCR 1124, 2013 (6) SCC 515, 2013 (6) SCALE 425 - CIVIL APPEAL NO. 3935 of 2013 - Dated:- 26-4-2013 - CHAUHAN, B.S (DR) KALIFULLA, FAKKIR MOHAMED IBRAHIM, JJ. J U D G M E N T Dr. B.S. Chauhan, J. 1. This appeal has been preferred against the impugned judgment and order dated 4.10.2011 of the High Court of Judicature of Bombay in Letters Patent Appeal No.171 of 2011 arising out of Writ Petition No. 1849 of 2003, by way of which the Divisio .....

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ed as the Head Master of the said school on 21.6.1979. B. A new Management Committee came into power in the year 2000, and began to raise allegations of misconduct against the appellant, as the appellant had certain apprehensions with respect to the eligibility of certain office bearers of the Management Committee. C. The respondents-management issued show-cause notice dated 21.2.2001 to the appellant, under Rule 28 of the Maharashtra Employees of Private School Rules, 1981 (hereinafter referred .....

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a chargesheet dated 17.5.2001 containing 12 charges of misconduct, was served upon the appellant. The appellant vide letter dated 1.7.2001, submitted his clarifications with respect to the said charges that had been levelled against him. E. An Enquiry Committee consisting of two members instead of three, as per the Rules 1981, conducted the enquiry and submitted its enquiry report on 20.5.2002, making a recommendation that the appellant be dismissed from service. The said enquiry report was acce .....

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od 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 Pa .....

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nd further that none of the charges reflected embezzlement or mis-appropriation, and cast no doubt upon the integrity of the appellant whatsoever. As the appellant stood retired on 30.9.2002, the question of holding a fresh enquiry in 2011 could not arise. The court does not lack competence to decide the case on merits even if it comes to the conclusion that there has been violation of statutory rules, principles of natural justice or the order also stood vitiated on some other technical ground. .....

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gainst him, and he can be punished by withholding either full or part of his pension. No fault can be found with the impugned judgment and thus, the appeal is liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. The appeal raises the following substantial questions of law:- (i) In case the punishment is set aside by the Court/Tribunal as the enquiry stood vitiated for technical reasons, whether the employer is .....

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the ground, that the enquiry 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 deli .....

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, 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, as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proce .....

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he conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion. (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Ba .....

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n Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752 this Court held, that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defence as he will be unaware of the exact nature of the allegations against him, and what kind of defence he should put up for rebuttal thereof. The Court observed as under:- The grounds on which it is proposed to take action have to be reduced to the form of a .....

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rred 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 we .....

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rotest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. (Vide: State of And .....

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nducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity. Enquiry against a retired employee: 12. This Court in NOIDA Entrepreneurs Association v. NOIDA & Ors., AIR 2011 SC 2112, examined the issue, and held that the competence of an authority to .....

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ah, AIR 1965 SC 473, a Constitution Bench of this Court held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed:- According to the earlier order of the State Government 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 se .....

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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 that in the absence of such a provision which entitled .....

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provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held t .....

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l benefits. The proceedings for recovery of financial loss from an employee is permissible even after his retirement and the same can also be recovered from the retrial benefits of the said employee. 18. Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if .....

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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 .....

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d not attend any of the 11 meetings of the Managing Committee in the capacity as a Head Master. (h) Charge No.8:- The first respondent did not submit explanation regarding his teaching workload though asked for by the management as per letter No. S/167 dated 11.12.2000. (i) Charge No.9:- The first respondent did not give his explanation about donation of ₹ 4900/ - given by the Lioness Club of Barsi demanded by the management as per letter No. S/174 dated 27.12.2000. (j) Charge No.10:- The .....

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nt was imposed. 20. The Tribunal examined all the issues involved, and recorded its specific findings as under: The charge No.11 is in respect of excessive telephone bills. The telephone bill for the academic year 1999- 2000 is ₹ 3931/-. According to Management this is excessive bill. The charge is vague. The explanation given by appellant that specifically no call was made for private purpose. The objection regarding call at Chennai is properly explained that this call was made to the Ins .....

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led against the school and these calls were made to the Advocate concerned in connection with the Writ Petition. Calling such an explanation on every call by the Management to the Head Master is nothing but over victimizing or interference of Management in day-to-day business of the school. xx xx xx xx There is no evidence brought before the Inquiry Committee to hold guilty for these charges. But the members seem to have anxious to hold the guilty of the charges to the appellant. They have based .....

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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 S .....

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ement council meeting. This charge is also purely technical. The explanation of the appellant is that intimation of meeting was given by the Management at the 11th hour before few hours of the meeting without providing agenda of the meeting…. The explanation needs sympathetic consideration and the allegations if at all considered, cannot be a ground for termination of appellant s service. (viii) Charge No.8, is in respect of workload of about six hours in a week to be discharged by the He .....

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have been initiated on very technical flaws which lead to only conclusion that it was pre-determined and pre-judicial inquiry. As explained above, there is no sufficient proof on record to hold that the charges are proved. 21. The Tribunal, as well as the learned Single Judge of the High Court have recorded a categorical finding of fact to the effect that initiation of departmental enquiry against the appellant had been done with malafide intention to harass him. The charges were not specific an .....

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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 .....

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as 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 manner in which the departmental enquiry was held, liberty should have been given to the management to hold a fresh enquiry if so advised, and if the appellant was found guilty thereafter, punishment could have been imposed on him as permissible under law. (ii) Once the Tribunal and the learned Single judge have f .....

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y the Division Bench that the Tribunal and the learned Single Judge had found that there was a defect in the manner in which the enquiry was held, and therefore there was no question of it recording a finding on merit to the effect that charges levelled against the appellant were not proved, is also not sustainable in law. It is always open for the Court in such a case, to examine the case on merits as well, and in case the Court comes to the conclusion that there was infact, no substance in the .....

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r of the school. The appellant has provided satisfactory explanation for each of the allegations levelled against him. Moreover, he has retired in the year 2002. The question of holding any fresh enquiry on such vague charges is therefore, unwarranted and uncalled for. 26. The Education Officer (Secondary), Zilla Parishad, Solapur, had filed an affidavit before the High Court, wherein it was stated that a dispute had arisen between the trustees, and in view thereof, an enquiry was initiated agai .....

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ic. 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 o .....

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