Doctrine Of Necessity Will Apply When President Of Disciplinary Enquiry Committee Was Replaced Due To Ill Health : Supreme Court

The bench of Justices Hemant Gupta and V Ramasubramanian also reversed the Bombay High Court's judgment which affirmed the School Tribunal's order.

In the impugned order, the High Court had affirmed the view taken by School Tribunal of allowing the appeal of Principal of Jai Bhavani Shikshan Prasarak Mandal's against removal from service on allegations of serious nature.

The Supreme Court in the instant appeal Jai Bhavani Shikshan Prasarak Mandal v Ramesh & Ors, while reversing the impugned orders of the Tribunal and High Court, said,

"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 benefit, the same shall not be recovered from him."

Factual Background

In 2004, disciplinary proceedings were initiated against the Principal of Jai Bhavani Shikshan Prasarak Mandal on certain allegations of serious nature.

The Departmental Inquiry Committee held an inquiry in which the principal was given all opportunities of fair hearing, including permission to be represented by a lawyer. After the completion of the inquiry, the Inquiry Committee on July 31, 2004 submitted a report holding 7 out of 10 charges proved. Therefore, after issuing a show cause notice enclosing a copy of the Inquiry Report, the Management passed an order dated 19.08.2004 the penalty of removal from service upon the Principal.

Aggrieved, the Principal challenged the penalty before the School Tribunal by way of an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977.

The main contention of the Principal 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.

The Tribunal found only the issue relating to the constitution and composition of the Inquiry Committee to be not in accordance with the Rules.

Therefore, on June 22, 2006 the Tribunal allowed the appeal primarily on the ground that the constitution of the Inquiry Committee was not in accordance with Rule 36(2)(b) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (MPES Rules)

Jai Bhavani Shikshan Prasarak Mandal approached the Bombay High Court by way of a writ petition which was dismissed by the High Court.

The intra­court appeal filed by the appellant­Management was dismissed by the division Bench, by placing reliance upon the decision of the Full Bench of the High Court in National Education Society, Nagpur and another vs. Mahendra, s/o Baburao Jamkar and another [2007 (3) Mh LJ 707].

The bench had relied on the said judgement to conclude that irrespective of whether the Head of the Institute is also the Chief Executive Officer or not, Rule 36(2)(b) mandates the President to be a member of the Inquiry Committee.

Aggrieved, the appellant approached the High Court.

Supreme Court's Analysis

The bench in the judgement authored by Justice V Ramasubramanian, while referring to Rule 36 of MPES Rules ,which deal with Inquiry Committee said,

"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."

The bench further noted that the Departmental Inquiry Committee as originally constituted, had the President of the appellant­ Society as a Member. But due to the President's request of relieving him due to ill health, the management had to finally appoint another person as the President of the Departmental Enquiry Committee.  

Considering the facts, the bench said, "But the School Tribunal held that the aforesaid Resolution dated 22.06.2004 surfaced only after the conclusion of the arguments in the appeal and that, therefore, it could have been prepared as an afterthought. The learned Single Judge of the High Court refused to interfere with this finding of fact, on the ground that the supervisory jurisdiction of the High Court was limited under Article 227 of the Constitution."

Referring to paragraph 7 and 9 of the Memorandum of Appeal preferred by the Principal before the School Tribunal, the bench said,

"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."

The Supreme Court also observed that the judgment of the Full Bench, on which reliance was placed by the High Court, may not be correct.

"As could be seen from the portion of the Judgment extracted above, the full Bench was unduly carried away by the fact that the Head of an Institution will become equated to an employee, if it was held that the President of the Society need not be a member of the Inquiry Committee. But what the Full Bench omitted to take note of was that the Chief Executive Officer of a Society, such as the President, Secretary or Treasurer cannot be an employee of the Institution run by the Society and that a Chief Executive Officer such as the President or Secretary is liable to get elected and not entitled to remuneration. On the other hand, the Head of the Institution is essentially an employee who is entitled to remuneration, seniority, promotion, continuance in service till the age of superannuation etc., and who is subject to the disciplinary control of the Management. In fact the President or Secretary of the Society cannot be removed under the MEPS Rules. But the Head of the Institution can be removed only in terms of the Rules. Therefore, the interpretation given by the Full Bench of the High Court of Bombay in National Education Society (supra), under Rule 36(2)(b) may not be correct."

Case Title: Jai Bhavani Shikshan Prasarak Mandal v Ramesh & Ors| CIVIL APPEAL NO.7937 of 2011

Coram: Justices Hemant Gupta and V Ramasubramanian

Citation : 2022 LiveLaw (SC) 327

Disciplinary proceedings - Doctrine of Necessity -Maharashtra Employees of Private School (Conditions of Service) Act, 1977- 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.

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