Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 – ss. 2(9), 9 – Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 – r.36(2)(b)– Doctrine of necessity – First respondent was appointed as the Principal of the Institute of Pharmacy being run by appellant-society – Disciplinary proceedings were initiated against him on certain allegations – After completion of inquiry, management passed an order imposing penalty of removal from service – Appeal filed by respondent, allowed by School Tribunal on the ground that the constitution of the inquiry committee was not in accordance with r.36(2)(b) of 1981 Rules– Writ petition filed by the appellant was dismissed by High Court – On appeal, held: Two expressions namely “Head” and “Chief Executive Officer” used in sub-rule (1) of r.36 provide the fulcrum of the controversy on hand – Sub-rule (2) of r.36 provides for the composition of the Inquiry Committee in a particular manner in the case of “an employee” and it provides for the composition of the Inquiry Committee in a different manner in the case of “the Head” – In the present case, the Departmental Inquiry Committee as originally constituted, had the President of the appellant as a Member – But the President requested the appellant to relieve him due to ill health – Thereafter, one of the Vice-Presidents was requested to be part of the Inquiry Committee, however, the said Vice-President also recused due to family problems – Another Vice-President was nominated to be part of the Inquiry Committee – The said Vice-President also opted out – Then management decided to confer all the powers of the president to one ‘ASRP’ – However, school tribunal as well as High Court omitted to take note that the first respondent was informed about the ill health of the President of the society and the appointment of ‘ASRP’in his place – Tribunal as well as the High Court failed to take note of the very pleadings of the first respondent with regard to the circumstances in which the President of the Society could not continue as part of the Inquiry Committee – Therefore, the order of the School Tribunal was vitiated by perversity –Moreover, the High Courtfailed to take the note of doctrine of necessity – Once it is admitted, that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play – Hence, the orders of High Court and School Tribunal are liable to be reversed – Since, the School Tribunal rejected all other contentions of respondent No.1, but upheld only the contention revolving around r.36(2)(b), the penalty of removal from service imposed upon the first respondent is to be upheld.
Allowing the appeal, the Court
HELD: 1.1 Two expressions namely “Head” and “Chief Executive Officer” used in sub-rule (1) of Rule 36 provide the fulcrum of the controversy on hand. The expression “Head” is not defined in the Rules. However, the expression “Chief Executive Officer” is defined in Rule 2(1)(c). The word “Head” is defined in Section 2(9) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. Sub-rule
(2) of Rule 36 provides for the composition of the Inquiry Committee in a particular manner in the case of “an employee” and it provides for the composition of the Inquiry Committee in a different manner in the case of “the Head”. In other words, the Inquiry Committee can comprise of (i) one member amongst the members of the Management, nominated by the management or the President; (ii) one member nominated by the employee from amongst the employees; and (iii) one member chosen by the Chief Executive Officer from the panel of teachers, if the inquiry is against “an employee”. But if the inquiry is against the Head, the Inquiry Committee should comprise of: (i) the President of the Management; (ii) one member to be nominated by the Head from amongst the employees of any private schools; and (iii) one member chosen by the President from the panel of Head Masters. [Paras 8-10][608-C-H; 609-A]
1.2 In the case on hand, there is and there can be no dispute about the fact that the first respondent was the Head within the meaning of the expression in terms of Section 2(9) of the Act, as he was the Principal of the Institute. But admittedly the first respondent was not the Secretary, Trustee or Correspondent of the Institute, to fall within the definition of the expression “Chief Executive Officer” under Rule 2(1)(c) of the Rules. The main contention of the first respondent which was accepted by the School Tribunal and the High Court was that by virtue of Rule 36(2)(b) of the Rules, the President of the Management should have been one of the members of the Inquiry Committee. There is no dispute about the fact that the President of the appellant-Society was not a member of the Inquiry Committee. But this fact provides only one part of the story. The other part of the story is that the Departmental Inquiry Committee as originally constituted, had the President of the Appellant-Society as a Member. But the case of the management is that by a letter dated 13.06.2004, the President requested the appellant-Society to relieve him due to ill health. Therefore, by a letter dated 14.06.2004 one of the Vice-Presidents was requested to be part of the Inquiry Committee. But the said Vice-President also recused due to family problems. Therefore, by a letter dated 16.06.2004 another Vice-President was nominated to be part of the Inquiry Committee. The said Vice-President also opted out. Therefore, by a Resolution dated 22.06.2004, the Management decided to confer all the powers of the President to one Shri ‘ASRP’. [Paras 11 and 13][609-B-F]
1.3 The School Tribunal as well as the High Court omitted to take note of the very pleadings of the first respondent in his appeal before the Tribunal. In paragraph 7 of the Memorandum of Appeal submitted by the first respondent before the School Tribunal, he admitted that the chargesheet was signed by Shri ‘ASRP’, the President of the Society. In paragraph 9 of the Memorandum of Appeal, the respondent No.1 also admitted that by a letter dated 26.06.2004 he was informed about the ill health of the President of the Society and the appointment of Shri ‘ASRP’ in his place.Unfortunately the School Tribunal as well as the High Court failed to take note of the very pleadings of the first respondent with regard to the circumstances in which the President of the Society could not continue as part of the Inquiry Committee. Therefore, the order of the School Tribunal was vitiated by perversity. In any case, the High Court, in the impugned order, failed to take the note of doctrine of necessity. Once it is admitted, (i) that the disciplinary proceedings commenced with an Inquiry Committee of which the President was a member; and (ii) that subsequently he was replaced by someone due to ill health, the doctrine of necessity would come into play. Hence the impugned orders of the High Court and the School Tribunal are liable to be reversed. Since the School Tribunal rejected all other contentions of respondent No.1, but upheld only the contention revolving around Rule 36(2)(b), the penalty of removal from service imposed upon the first respondent is liable to be upheld.However, if by virtue of any interim order passed by any forum, the respondent No.1 has been granted any monetary benef it, the same shall not be recovered from him. [Paras 15, 16 and 23][610-D-E; 611-B; 613-D-F] National Education Society, Nagpur and another vs. Mahendra, s/o Baburao Jamkar and another 2007
(3) Mh.L.J 707 – disapproved.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.