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2000 DIGILAW 695 (BOM)

Waghchoure Baliram Vithalrao v. President, Shri Uttamrao Parashram Savant & others

2000-09-21

R.M.S.KHANDEPARKAR

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JUDGMENT - R.M.S. KHANDEPARKAR, J.:---By the present petition, the petitioner challenges the order dated 9-4-1986 passed by the Presiding Officer, School Tribunal, Aurangabad, in Appeal No. 3/1985, as well as, the orders dated 27-8-1984 and 1-3-1985, passed by the respondent Nos. 1 and 2, to be null and void. The challenge is to the reduction in rank of the petitioner from Head Master's post to a post of permanent teacher in the school run by the respondent Nos. 1 and 2. 2. Upon hearing the learned Advocates for the parties and on perusal of the record, it is seen that the challenge to the reduction in the post is on two grounds. Firstly, that the school authorities have not followed the mandatory provisions of Rules 36 and 37 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as "the said Rules") inasmuch as the petitioner was not given opportunity to nominate his nominee on the Enquiry Committee, and secondly, that the reduction in the rank of the petitioner has been done to accommodate the respondent No. 3 who is the brother-in-law of the President of the Society who runs the school and, therefore, the action smacks of mala fide. 3. The learned Advocate for the petitioner has placed reliance upon the judgment of this Court, in the case of (Vanmala S. Aney v. National Education Society, Khamgaon and others)1, 1982 Mh.L.J. 403, in support of his contention that in the absence of due compliance of mandatory provisions of Rule 36 of the said Rules, the order of reduction in the rank issued in the matter by the respondent-Society is bad in law. 4. On the other hand, the learned Advocate for the respondents have submitted that there has been due compliance of the provisions of law and there was total non-co-operation on the part of the petitioner himself, in the course of enquiry and, therefore, the failure on the part of the petitioner to nominate nominee on the Enquiry Committee, cannot invalidate the proceedings and hence no fault can be found with the impugned orders. The objection was raised on behalf of the respondent No. 7, for joining him as party to this writ petition without he being joined as party to the proceedings before the School Tribunal. The objection was raised on behalf of the respondent No. 7, for joining him as party to this writ petition without he being joined as party to the proceedings before the School Tribunal. In reply thereto, it was contended by the learned Advocate for the petitioner, that when the appeal was filed, the respondent No. 7 was not appointed as the Head Master of School and, at that time, the respondent No. 3 was working Head Master in charge of the school. 5. There can be no doubt that the provisions contained in Rule 36 of the said Rules are mandatory in nature, as is observed by the Division Bench of this Court, in the case of Vanmala S. Aney (cited supra). It is well established that where the power is given to do a certain thing in certain way, the thing must be done in that way. However, the contention of the petitioner, that in the present case, there was non-compliance of the said mandatory provision inasmuch as the petitioner was not given opportunity to appoint his nominee on the Enquiry Committee, is not borne out from the record. On the contrary, a clear finding by the School Tribunal in that regard is that the petitioner was served with the notice dated 25-8-1984 requiring him to give name of his representative on the Enquiry Committee and the petitioner inspite of having received the said letter and having given acknowledgment in writing in respect thereof, he refused to take part in enquiry proceedings. 6. Though the petitioner in Ground No. (ii) has made submission that the observations in para 13 of the judgment of the Tribunal corroborates that there is no evidence that the appellant had serviced (sic received) the letter dated 21-8-1984 or letter dated 25-8-1984 and findings to that effect were, therefore, perverse, there is no statement of fact in that regard in the body of the petition. It is nowhere pleaded that the petitioner had never received any letter dated 21-8-1984 or letter dated 25-8-1984. A submission in the ground is different from the statement of fact. The grounds can be raised upon the factual foundation in the petition. The factual basis or foundation has necessarily to be provided by the parties to enable the Court to consider the plea of violation of procedure or right of the party. 7. A submission in the ground is different from the statement of fact. The grounds can be raised upon the factual foundation in the petition. The factual basis or foundation has necessarily to be provided by the parties to enable the Court to consider the plea of violation of procedure or right of the party. 7. In the absence of averments regarding facts in the petition, it is not possible for the Court to arrive at a conclusion of fact merely on the basis of submissions and arguments. On facts, it is hazardous to engage in guess work in the absence of specific pleadings. It is also not appropriate to draw inference about existence of things or happening of instances. The decisions in that regard, if necessary, those can be conveniently referred to are in the matter of (Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor others)2, 1999 Bank.J. (S.C.)681 . Mere expression of views of the party unsupported by relevant data cannot form the basis of decision of the Court. In the matter of (Chancellor and another v. Dr. Bijayananda Kar and others)3, 1994(1) S.C.C. 169 where the appointment of the respondent was quashed by the High Court on the basis of two letters without there being pleading of facts relating to the said letters, the Apex Court set aside the decision. 8. In the matter at hand, I do not find any such foundation being led by the petitioner as regards non-receipt of the said letters giving opportunity to the petitioner to appoint his nominee on the Enquiry Committee. In the absence of such factual foundation being laid in the petition and duly verified to be true by the petitioner, no value can be attached to the submission regarding non-compliance of the provisions of Rule 36. The finding of the Tribunal, that such notice was given, is a finding of fact and unless it is perverse or contrary to records, it is final and binding. The petitioner has not been able to establish with sufficient materials being placed on record that the finding is perverse or contrary to records. Merely because the petitioner failed to take necessary steps in time to nominate his member on the Enquiry Committee, that cannot entitle to the benefit of the petitioner to get the decision set aside. Hence, the first ground of challenge is devoid of substance. 9. Merely because the petitioner failed to take necessary steps in time to nominate his member on the Enquiry Committee, that cannot entitle to the benefit of the petitioner to get the decision set aside. Hence, the first ground of challenge is devoid of substance. 9. As regards the allegation of mala fide on the part of the respondent in reducing the rank of the petitioner from the post of Head Master to the post of a Teacher, the contention of the petitioner is that the petitioner was reduced in rank to accommodate the respondent No. 7 who is stated to be brother-in-law of one Uttamrao Parasharam Savant, the President of the Society. Undisputedly, when the order of reduction in rank of the petitioner was issued, the respondent No. 7 was neither promoted nor appointed to the post of Head Master. On the contrary, the respondent No. 3 was appointed as Head Master in charge of the school. It is also not in dispute that the necessary charge-sheet was issued to the petitioner followed by the enquiry conducted by the Enquiry Committee and the charges included failure on the part of the petitioner to deposit the money in R.D.A. as well as C.T.D. accounts. The petitioner in his reply to the charge sheet had clearly admitted of having failed to deposit the said money in time. In the facts and the circumstances of the case, there is absolutely no scope to smack of any mala fide on the part of the respondent in reducing the rank of the petitioner from the post of Head Master to the post of the Teacher. 10. In the result, the petition fails and the same is dismissed with no order as to costs. Rule stands discharged. Petition dismissed. -----