Judgment : 1. By way of present petition, the petitioner-management challenges the order dated 30th June, 2000 passed by the learned Presiding Officer, Additional School Tribunal, Nagpur (Chandrapur) in STC No. 31 of 1997. 2. Heard Shri R.L. Khapre, the learned Counsel appearing on behalf of the petitioners, Shri N.D. Khamborkar, the learned Counsel appearing on behalf of respondent No.1 and Shri A.K. Bangadkar, the learned Assistant Government Pleader appearing on behalf of respondent Nos.2 and 3. 3. The respondent No.1 Shri Madhukar Koche was appointed as Headmaster in the school run by the petitioner-institute namely Jawahar Smruti Vidyalaya, Delwadi, Taluka Ashti, District Wardha on the substantive and permanent post. Initially the school was being run as a school on non grant-in-aid basis till 1990 from the year. From the year 1990-91, a school was admitted to the grants and was receiving grant-in-aid from the State Government. The respondent No.1 was served with a show cause notice. The petitioner-management levelled the charges of failure in duty, defalcation of the amount, not maintaining the records properly etc., etc. against respondent No.1. The charges would be dealt with in detail at the later part. An enquiry was initiated against respondent No.1. The report of the Enquiry Committee concluded in opining that the charges levelled against respondent No.1 are proved. Accordingly the order of termination was issued to respondent No.1. The termination order was dated 29.04.1997 and was communicated to respondent No.1 on 01.05.1997. The respondent No.1, being aggrieved by the said termination order, approached the Presiding Officer, School Tribunal, Chandrapur by preferring an appeal under Section 9 of the MEPS Act, 1977. The appeal was partly allowed by the learned Presiding Officer, School Tribunal. The termination order passed against respondent No.1 was set aside. The petitioners were directed to reinstate the respondent No.1 on his original post as Headmaster and were directed to 50 per cent arrears of the emoluments of respondent No.1 from 01.05.1997 till he resumes the duties within stipulated period of sixty days. 4. Being aggrieved by the said order passed by the learned Presiding Officer, the petitioner-institute is before this Court. The respondent No.1 also challenges the order of the Presiding Officer to the extent of grant of 50 per cent of the arrears of emoluments claiming 100 per cent of the arrears of emoluments in connecting W.P. No. 762 of 2001. 5. Being aggrieved by the said order passed by the learned Presiding Officer, the petitioner-institute is before this Court. The respondent No.1 also challenges the order of the Presiding Officer to the extent of grant of 50 per cent of the arrears of emoluments claiming 100 per cent of the arrears of emoluments in connecting W.P. No. 762 of 2001. 5. Shri Khapre, the learned Counsel for the petitioners raises the grounds namely the enquiry was conducted against respondent No.1 by a duly constituted committee and by following due procedure. It is further the submission of Shri Khapre that the charges raised against respondent No.1 were proved. The respondent No.1 had committed serious lapses in discharge of his duties and was also indulged in defalcation of the amount. He further submits that the learned Presiding Officer, only on technical grounds, that too unsustainable grounds, allowed the appeal. 6. Per contra, Shri Khamborkar, the learned Counsel for respondent No.1 submits that though the learned Presiding Officer, School Tribunal found that the termination of respondent No.1 was clearly unsustainable on account of the faulty enquiry and non observance of the provisions of the MEPS Act, awarded only 50 per cent of the arrears of emoluments. 7. With the assistance of both the learned Counsel appearing on behalf of the respective parties, I have gone through the material placed on record. The show cause notice issued to respondent No.1 with the charges is at “Annexure-VI”. There are as many as 26 charges levelled against respondent No.1. Some of the charges relate to non submission of the accounts, failure for taking action against the subordinate staff, failure in proper supervision of the records, failure in administration of the school, failure in submission of the necessary proposals to the Education Department, not keeping vigilance over the school premises, taking more interest in the individual's affairs and neglecting the school administration, actively participating in the Court proceedings initiated against the management etc.. Out of these various charges, charge Nos.4 and 16 deal with defalcation of the cash amount. The charge No.4 is in respect of receiving Rs.6,400/- from subordinate staff namely Shri Khan and without depositing the amount in the account of the management, the amount was kept by the respondent No.1 with himself. The charge No.16 reads that, “some of the employees received their salary amount for the period of June, 1990 to February, 1991. The charge No.4 is in respect of receiving Rs.6,400/- from subordinate staff namely Shri Khan and without depositing the amount in the account of the management, the amount was kept by the respondent No.1 with himself. The charge No.16 reads that, “some of the employees received their salary amount for the period of June, 1990 to February, 1991. The respondent No.1 preserved the passbook and cheque book with him. The amount deposited against the salary of the employees was withdrawn by the respondent No.1 through one of the employees of the school. The respondent No.1 deposited and amount of rupees one lakh in the account of the school; whereas rest of the amount of the salary was kept by respondent No.1 with himself”. Thus charge Nos.4 and 16 are the serious charges in respect of the defalcation of the amount. 8. Shri Khapre, the learned Counsel for the petitioners invites my attention to the communication forwarded to respondent No.1 through the petitioner-institute and submits that though the respondent No.1 was repeatedly directed to submit the information, the respondent No.1 failed to submit any information. Shri Khapre also invites my attention to the communication wherein it was communicated to respondent No.1 that in the surprise visit, it was found that the subordinate staff was not discharging the duty properly though the classes timing was 11:30 a.m., the classes were started even after 11:45 a.m.. The teachers were not properly guiding the students. The respondent No.1 being head of the school ought to have supervised these affairs, but he himself was found irregular in attending the school. 9. Perusal of the proceedings of the enquiry conducted against the respondent No.1 shows that the respondent No.1 was represented through his representative Shri Raut. The Enquiry Committee was consisting of President Shri S.N. Jane and the State Government awardee teacher Shri M.A. Firdosee. The respondent No.1 has denied certain charges and submitted explanation to the said charges. The report of the Enquiry Committee is at “Annexure-VIII”. The final report of the enquiry is at “Annexure-IX”. Perusal of the final report reveals that certain meetings were attended by the representative of respondent No.1. The various dates of the proceedings were referred to in the report. On 18.04.1997, it was informed to respondent No.1 that the final meeting would take place on 22.04.1997 at the residence of President Shri S.N. Jane at Arvi. Perusal of the final report reveals that certain meetings were attended by the representative of respondent No.1. The various dates of the proceedings were referred to in the report. On 18.04.1997, it was informed to respondent No.1 that the final meeting would take place on 22.04.1997 at the residence of President Shri S.N. Jane at Arvi. It was also communicated to the representative of respondent No.1 Shri Raut. The report reveals that on 22.04.1997, neither respondent No.1 nor his representative was present. The Enquiry Committee found that the charges against respondent No.1 are proved. 10. On the backdrop of these facts, the learned Presiding Officer, School Tribunal framed the points for determination namely whether the alleged termination order is legal, valid and proper as based on the enquiry report, what order and relief. The Presiding Officer recorded his finding in negative to the point No.1. The charges are referred to in detail. The Enquiry Committee, on most of these charges, recorded the finding observing that the charges are proved in view of the admission of respondent No.1 or the explanation offered by respondent No.1 being not satisfactory. As stated above that the serious charges are Charge Nos.4 and 16, they deal with the defalcation of the amount. In respect of charge No.4 i.e. to the tune of amount of Rs.6,401/-, the Enquiry Committee arrived at the conclusion that the amount was handed over to respondent No.1. The submission of respondent No.1 to the charge was that the said amount was handed over to the Secretary. The Secretary failed to deposit that amount in the bank account. The Enquiry Committee held that the charge was proved against respondent No.1. The learned Presiding Officer, School Tribunal, on the basis of the statement of Shri Hamid Khan wherein he stated that he paid an amount of Rs.5,421/- and an amount of Rs.6,401/- to the Secretary, the Secretary had issued receipt in respect of the amount of Rs.6,401/-to Shri Hamid Khan. In the enquiry proceedings and the statement of Hamid Khan submitted in the enquiry proceedings, the learned Presiding Officer, School Tribunal held that respondent No.1 cannot be held responsible. 11. In the enquiry proceedings and the statement of Hamid Khan submitted in the enquiry proceedings, the learned Presiding Officer, School Tribunal held that respondent No.1 cannot be held responsible. 11. Insofar as charge No.16 is concerned, it is interesting to note that in the final report though there is a reference in the report that charge No.16 is a serious charge, there is no discussion about the material in support of charge No.16 in the reply given by respondent No.1. The conclusion in the report of the Enquiry Committee reads that the charge Nos.1 to 11 and charge Nos.18 to 28 are proved against respondent No.1. It is also interesting to note that the concluding part is silent about the charge No.16. Perusal of the proceedings of the Committee shows that no statement of allegations was supplied to respondent No.1, not a single witness was examined in the enquiry proceedings. It is interesting to note that the perusal of the proceedings on 22.03.1997 shows that the Enquiry Committee thought it fit to record the statements of the employees in respect of Charge No.16 as some of the employees were not available since they were deputed on examination duties and some employees sought time to record the statements, the next date of enquiry was scheduled on 25.03.1997. In spite of this observation, the record shows that subsequently no statement of any of the employee was recorded. The copy placed on record at page No.119 in respect of the proceedings dated 25.03.1997 reads that the enquiry proceedings in respect of charge No.16 was completed on that date and the enquiry report in respect of charge No.16 would be concluded after receipt of the statement of employees on 31.07.1997. 12. Shri Khamborkar, the learned Counsel for respondent No.1 submits that the respondent No.1 was supplied with the copy of proceedings dated 25.03.1997 and behind the back of respondent No.1, there was insertion of certain statements in the proceedings dated 25.03.1997. The learned Counsel has placed the copy of the proceedings sheet received by respondent No.1 for perusal of this Court. It reveals that the portion till the statement that the enquiry is complete in respect of charge No.16 is the typed portion; whereas three lines in addition are certain part is hand written. The learned Counsel has placed the copy of the proceedings sheet received by respondent No.1 for perusal of this Court. It reveals that the portion till the statement that the enquiry is complete in respect of charge No.16 is the typed portion; whereas three lines in addition are certain part is hand written. It is interesting to note that the perusal of report dated 22.04.1997 shows that the proceeding of the enquiry was held at the residence of the President Shri Jane at Arvi. This aspect assumes importance on the backdrop of the submission of Shri Khamborkar that the meeting of the Enquiry Committee conducted at the residence of the President is clearly in breach of the provisions of MEPS Act and Rules. Shri Khamborkar places reliance on Rule 36(6) of the MEPS Rules. Rule 36 deals with the Enquiry Committee and its position. Rule 36(6) reads thus: “The meetings of the Inquiry Committee shall be held in the school premises during normal school hours or immediately thereafter, if the employee agrees and even during vacation”. (emphasis supplied). 13. The submission of Shri Khamborkar is that the meeting of the Enquiry Committee can only be held in the school premises is the requirement of the provisions. No other place other than the school premises can be a place for meeting of the Enquiry Committee. 14. There is merit in the submission of Shri Khamborkar. The meeting of the Enquiry Committee scheduled on 22.04.1997 at the residence of the President Shri Jane at Arvi was clearly in breach of the provisions of the Act. It will be out of place to refer to the other provisions i.e. Rule 37. Rule 37 requires, “that the management shall prepare a charge sheet containing the specific charges and shall hand over the same together with the statement of allegations and the explanation of the employee or the Head as the case may be, to the Convener of the Inquiry Committee …” (emphasis supplied). The submission of Shri Khamborkar is that as no statement of allegation was handed over to respondent No.1, the procedure of enquiry contemplated under Section 37 is followed in breach. On the backdrop of this submission, perusal of the show cause notice (Annexure-VI) dated 02.09.1995 shows that the petitioner has not supplied with the statement of allegations. As such, there is merit in the submission of Shri Khamborkar. 15. On the backdrop of this submission, perusal of the show cause notice (Annexure-VI) dated 02.09.1995 shows that the petitioner has not supplied with the statement of allegations. As such, there is merit in the submission of Shri Khamborkar. 15. Perusal of the documents namely show cause notice, the charge sheet and “Annexure-B” to the charge sheet i.e. list of documents is signed by the President of the petitioner No.1-Society. It is not in dispute that the President was the Convener of the Departmental Enquiry. The learned Counsel for respondent No.1 places reliance on the judgment of this Court In the case of Kashiram Rajaram Kathane v. Bhartiya R.B. Damle Gram Sudhar Tatha Shikshan Prasar Society and others (reported in 1997(3) Mh.L.J., 235) in support of his submission that the President cannot act in dual capacity in the enquiry proceedings as President and the Convener of the Enquiry Committee. 16. Shri Khapre, the learned Counsel for the petitioners makes an attempt to submit that there is no prohibition for the President of the management to be one of the members of the Enquiry Committee in case of enquiry against the Headmaster. Shri Khapre relies on Rule 36(2)(b) of the MEPS Rules. The same reads thus: “(b) in the case of the Head referred to in sub-rule (1) (i) one member who shall be the President of the Management; (ii) … (iii) ...” Though there is no prohibition for the President to act as member of the Enquiry Committee as per the Rules, the fact in the present case is that the President was convener of the Departmental Enquiry who had issued show cause notice to respondent No.1, the list of documents and as such the President could not have acted in dual capacity as convener of the enquiry as well as the member of the Enquiry Committee. 17. Perusal of the report of the Committee also shows that neither audit report was placed before the committee nor any statement of accounts was placed before the Committee and the charge No.4 is in respect of defalcation. As this was the necessary material to consider the charges, the learned Presiding Officer, School Tribunal, on finding that the Departmental Enquiry initiated against respondent No.1 was not legal and proper, allowed the appeal. As this was the necessary material to consider the charges, the learned Presiding Officer, School Tribunal, on finding that the Departmental Enquiry initiated against respondent No.1 was not legal and proper, allowed the appeal. Perusal of the material placed on record, I find that the learned Presiding Officer, School Tribunal committed no error in setting aside the termination order. In addition, the perusal of the enquiry proceedings clearly shows that the enquiry was conducted in breach of the MEPS Rules. 18. Taking overall view of the matter, I find no error is committed by the learned Presiding Officer, School Tribunal in quashing and setting aside the termination order as well as issuing the directions to the petitioner to pay 50 per cent of arrears of emoluments to respondent No.1 for the period from 01.05.1997 till he resumes the duties. 19. In the result, the petition is dismissed with no order as to cots.