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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3935  of 2013

Shri Anant R. Kulkarni  … Appellant

Versus

Y.P. Education Society & Ors.                     … Respondents

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 Division Bench of the High Court upheld the judgment of  

the learned Single Judge, as well as that of  the School Tribunal  

(hereinafter referred to as the ‘Tribunal’), quashing the enquiry  

against the appellant, while giving liberty to respondent Nos.1

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and 2 to hold a fresh enquiry on the charges levelled against the  

appellant.  

2. Facts  and  circumstances  giving  rise  to  this  appeal  are  

that:

A. The appellant was appointed as Assistant Teacher in the  

school run by the respondents on 7.6.1965, and was promoted  

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  to  as  the  ‘Rules  1981’),  seeking  an  

explanation as to why disciplinary proceedings should not be  

initiated against him, for his alleged misconduct.  The appellant  

submitted  his  reply  on  3.3.2001,  and  also  challenged  the  

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eligibility of some of the elected members of the Management  

Committee.  

D. The  Management  Committee,  vide  resolution  dated  

4.3.2001  took  a  decision  to  hold  disciplinary  proceedings  

against  the appellant  as per the provisions of Rule 36 of the  

Rules  1981,  and  in  pursuance  thereof,  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  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  

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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  held,  that  the  respondents  

were at liberty to proceed with the enquiry afresh, as regards the  

said charges.  

Hence, this appeal.  

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3. Shri C.U. Singh, learned senior counsel appearing for the  

appellant, has submitted that the charges have been found to be  

vague, and that the enquiry was conducted in violation of the  

statutory  Rules  1981,  and  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.  There  is  no  statutory  rule  

permitting  the  Management  Committee  to  hold  an  enquiry  

against  a  person  who  has  retired  a  decade  ago,  particularly  

when  the  school  is  a  government-aided  school,  and  the  

appellant-employee receives pension from the State. Thus, the  

appeal deserves to be allowed.     

4. Per  contra,  Shri  Braj  Kishore  Mishra,  learned  counsel  

appearing  for  the  respondents,  has  submitted  that  a  person  

cannot be allowed to go scot-free simply because he has retired.  

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An  enquiry  can  be  conducted  against  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 entitled to hold the enquiry afresh from the point it  

stood vitiated;

(ii) Whether the enquiry can be quashed on the ground of  

delay;

(iii) Whether  the  enquiry  can  be  permitted  to  be  held  on  

vague and unspecified charges; and

(iv)  Under  what  circumstances  enquiry  can  be  conducted  

against  the delinquent employee who has retired on reaching  

the age of superannuation.  

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In case the punishment is set aside:     

7. It is a settled legal proposition that, once the Court set  

asides an order of punishment on 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  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.  

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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, 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  

proceedings, cannot ordinarily be quashed by court.  The same  

principle  is  applicable  in  relation  to  there  being  a  delay  in  

conclusion  of  disciplinary  proceedings.  The  facts  and  

circumstances  of  the  case  in  question,  must  be  carefully  

examined,  taking into  consideration  the gravity/magnitude  of  

charges  involved  therein.  The  Court  has  to  consider  the  

seriousness and magnitude of the charges and while doing so  

the Court  must  weigh all  the facts,  both for  and against  the  

delinquent officers and come to the conclusion, which is just  

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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. Bani  

Singh & Anr., AIR 1990 SC 1308;  State of Punjab & Ors. v.  

Chaman Lal  Goyal,  (1995)  2  SCC 570;   State of  Andhra  

Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani  

v. Union of India & Ors., AIR 2006 SC 3475; Union of India  

& Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; The  

Secretary, Ministry of Defence & Ors. v. Prabash Chandra  

Mirdha, AIR 2012 SC 2250; and Chairman, LIC of India &  

Ors. v. A. Masilamani, JT (2012) 11 SC 533).

Enquiry – on vague charges :

9. In 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  

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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 definite   charge or charges which have to be communicated  to the person charged together with a statement of   the allegations on which each charge 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  

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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 conducted in violation  

of  the principles of  natural  justice.  Evidence adduced should  

not  be perfunctory,  even if  the delinquent  does  not  take  the  

defence of, or make a protest 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 Andhra Pradesh & Ors. v. S. Sree Rama  

Rao, AIR 1963 SC 1723; Sawai Singh v. State of Rajasthan,  

AIR 1986 SC 995; U.P.S.R.T.C.  & Ors.  v.  Ram Chandra  

Yadav, AIR 2000 SC 3596; Union of India & Ors. v. Gyan  

Chand  Chattar, (2009)  12  SCC  78; and Anil  Gilurker  v.  

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Bilaspur Raipur Kshetria Gramin Bank & Anr., (2011) 14  

SCC 379).

11. The purpose of holding an enquiry against any person is  

not only with a view to establish the charges levelled against  

him  or  to  impose  a  penalty,  but  is  also  conducted  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  hold an enquiry  

against  an  employee  who  has  retired,  depends  upon  the  

statutory rules which govern the terms and conditions of  his  

service, and while deciding the said case, reliance was placed  

on various earlier judgments of this Court including B.J. Shelat  

v.  State  of  Gujarat  & Ors.,  AIR  1978  SC 1109;  Ramesh  

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Chandra Sharma v. Punjab National Bank & Anr., (2007) 9  

SCC 15; and  UCO Bank & Anr. v.  Rajinder Lal Capoor,  

AIR 2008 SC 1831.     

13. In State of Assam & Ors. v. Padma Ram Borah, 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 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   

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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 that in the absence of such   a provision which entitled the State Government to   revoke  an  order  of  retirement…….  which  had  become effective and final, the order passed by the   State Government revoking the order of retirement   should be held as having been passed without the   authority of law and is liable to be set aside. It,   therefore,  follows  that  the  order  of  dismissal   passed thereafter was also a nullity.”

16. In Bhagirathi Jena v. Board of Directors, O.S.F.C. &  

Ors., AIR 1999 SC 1841, this Court observed:   

“…  There is also no 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   

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benefits payable to the appellant. In the absence of   such an authority, it must be held that the enquiry   had lapsed and the appellant was entitled to full   retiral benefits on retirement.”

17. In U.P. State Sugar Corporation Ltd. & Ors. v. Kamal  

Swaroop Tondon,  (2008) 2 SCC 41,  this Court dealt  with a  

case wherein statutory corporation had initiated proceedings for  

recovery  of  the  financial  loss  from  an  employee  after  his  

retirement from service.   This Court approved such a course  

observing  that  in  the  case  of  retirement,  master  and  servant  

relationship  continue  for  grant  of  retrial  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  

the enquiry has been initiated while the delinquent employee  

was in service, it would continue even after his retirement, but  

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nature  of  punishment  would  change.  The  punishment  of  

dismissal/removal from service would not be imposed.  

19. The  case  requires  to  be  examined  in  the  light  of  the  

aforesaid legal propositions.

The following charges were framed 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 Rs.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  

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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  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 Rs.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 respondent did not reply letter  no. S/131 dated 10.10.2000 in respect of Internet  connection.  

(k) Charge No.ll:- The first respondent did not explain  excessive telephone bills  as stated by him in his  letter no.L/83 dated 26.10.2000.  

(1)  Charge  No.12:-  The  first  respondent  did  not  submit report as to his activities during two days  on duty leave in  the office of  Education Officer  (Secondary)  Solapur  and the  Deputy  Director  of  Education, Pune Region, Pune.  

The  charges  were  found  proved  and  punishment  was  

imposed.  

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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  Rs.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  Institute of Brilliant Tutorials as it was required for the  students of Xth standard for guiding them for career for  Engineering. The Institute by names Brilliant Tutorials is  famous well known academy and some phone calls made  to  it  are  well  within the powers of  Head Master.  The  total bill of Rs.3931/- for a High School during a year  cannot be said to be excessive particularly when many  of the calls are made to Pune and Thane. These calls have  properly  been  explained  that  Writ  petition  was  filed  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  their  conclusion on some thread of evidence ignoring all other  circumstances and evidence in favour of appellant”  

The Tribunal further stated as under:   

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(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) Charge No.5, is in respect of submitting the budget  for  the  year  2001-2002  to  the  Management  without  approval  of  school  committee.  When  the  Management  has accepted this budget this charge does not survive. As  such  when  the  Management  has  directly  accepted  the  budget  and  budget  proposals,  this  charge  ought  not  to  have been framed at all.  

xx xx xx xx  

(vii)  Charge  No.7,  is  in  respect  of  not  attending  the  Management 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  

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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  Head  Master….Explanation given by the appellant is that the  hard subjects of science and mathematics were given to  new comers as appellant was to retire in near future. He  wanted  that  new man  should  be  well  prepared  before  appellant  leaves  the  school.  This  explanation  is  reasonable and acceptable.  

In  the  conclusion,  I  hold  that  the  evidence  on  record is not sufficient to hold the appellant guilty of the  charges. The net result of the scrutiny of the proceedings  is that the inquiry seems to 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  and precise;  infact,  they were  

vague and unspecific. Furthermore, the Management committee  

had failed to observe the procedure prescribed in Rules 36 & 37  

of Rules, 1981. The said Rules 36 & 37, prescribe a complete  

procedure for the purpose of holding an inquiry, wherein it is  

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clearly stated that an inquiry committee should have minimum  

three  members,  one  representative  from  the  Management  

committee,  one  to  be  nominated  by  the  employees  from  

amongst  themselves,  and  one  to  be  chosen  by  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  

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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 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  found  that  there  was  infact,  a  defect  in  the  

manner in which the enquiry was held, there was no  

question of them recording findings on merit  to the  

effect  that  the  charges  were  not  proved against  the  

appellant.

(iii)  However,  before  taking  any  steps  towards  

holding an enquiry,  the management would have to  

make payment of the full salary owed to the appellant,  

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for the period between the date of termination of the  

appellant from service, till the date of his retirement.

24. The conclusion reached by 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 allegations, it may not permit the  

employer  to  hold  a  fresh  enquiry.  Such  a  course  may  be  

necessary  to  save  the  employee  from  harassment  and  

humiliation.

25. In  the  instant  case,  there  is  no  allegation  of  

misappropriation/embezzlement or any charge which may cast  

a doubt upon the integrity of the appellant, or further, anything  

which may indicate even the slightest moral turpitude on the  

part of the appellant. The charges relate to accounts and to the  

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discharge of his functions as the Headmaster 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 against the appellant. The  

respondents terminated the services of the appellant  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  

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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 Rs.4,900/-  in respect of a telephone bill remained entirely  

irrelevant.  Furthermore,  the  same  was  not  a  charge  of  mis-

appropriation.  The learned Single Judge has also agreed with  

the same. The Division Bench though also in agreement, has  

given liberty to the respondents to hold a fresh enquiry.  

27. We may add that the court has not been apprised of any  

rule that may confer any statutory power on the management to  

hold a fresh enquiry after the retirement of an employee. In the  

absence of any such authority, the Division Bench has erred in  

creating a post-retirement forum that may not be permissible  

under law.  

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28. In light of the facts and circumstances of the case, none  

of the charges are specific and precise.  The charges have not  

been  accompanied  by  any  statement  of  allegations,  or  any  

details  thereof.  It  is  not  therefore  permissible,  for  the  

respondents to hold an enquiry on such charges. Moreover, it is  

a settled legal proposition that a departmental enquiry can be  

quashed on the ground of delay provided the charges are not  

very grave.    

29. In the facts and circumstances of the case, 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.  

30. In view of the above,  appeal  succeeds  and is  allowed.  

The  impugned  judgment  and  order  of  the  High  Court  is  

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modified to the extent referred to hereinabove. The appellant  

shall be entitled to recover all his salary and retirement dues, if  

not paid already.  No costs.  

       .............................……………………........................J.       (DR. B.S. CHAUHAN)  

                                                         .................……………………................................. J.  

                                  (FAKKIR MOHAMED IBRAHIM KALIFULLA)  

NEW DELHI  APRIL 26, 2013

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