Judgment 1. Rule. Rule made returnable forthwith by the consent of the parties and heard finally. 2. The petitioner/employee is aggrieved by the judgment and order dated 22-12-2011 delivered by the School Tribunal whereby his Appeal No. 57 of 2002 has been dismissed. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. The contentions of the petitioner in the light of the memo of admitted facts dated 28-01-2015 and oral submissions are summarised as under :- a] The petitioner has acquired the degree of Master of Arts and Bachelor of Education (M.A.B.Ed.) b] He was appointed on 15-07-1991 as a secondary school teacher. c] The petitioner and the respondent-management are covered by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (here-in-after referred to as the “ MEPS Act”) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (here-in-after referred to as the “ M.E.P.S. Rules”). d] On 20-12-2001, the petitioner was placed under suspension. e] The suspension order does not indicate that the petitioner was under an obligation or was ordered to mark his attendance in the school premises on the attendance register as a precondition for earning his suspension allowance. f] The resolution to suspend the petitioner was passed on 26-11-2001 which does not mention that the petitioner would not earn his suspension allowance if he did not mark his presence each day in the school attendance register. g] A final show-cause notice was issued on 14-12-2001. h] The petitioner received the said notice on 19-01-2002. i] The petitioner replied to the show cause notice on 22-01-2002. j] Before the petitioner received the notice and before he could submit his reply, the management arrived at a decision to conduct an enquiry and issued the letter for initiating an enquiry on 06-01-2002. k] A notice dated 06-01-2002 was issued to the petitioner to appoint his nominee on the enquiry committee. l] By letter dated 07-02-2002, the petitioner appointed his nominee on the enquiry committee. m] The charge sheet dated 25-02-2002 was issued to the petitioner setting out the charges as under :- i] Not residing within the head quarters. ii] Not following the time table. l] By letter dated 07-02-2002, the petitioner appointed his nominee on the enquiry committee. m] The charge sheet dated 25-02-2002 was issued to the petitioner setting out the charges as under :- i] Not residing within the head quarters. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. o] On 23-03-2002 the petitioner informed the enquiry committee that his nominee had developed cold feet and thus withdrew himself as his nominee on the enquiry committee. He prayed for eight days time to nominate a new nominee. p] Despite the above, the management continued with the enquiry without permitting the petitioner to nominate his nominee on the committee and recorded his evidence on the same day 23-03-2002. q] The enquiry was conducted by only two members. r] The enquiry report was submitted on 15-04-2002. s] The petitioner was terminated from employment on 19-04-2002. t] The management had decided to conduct the enquiry without considering the reply of the petitioner in violation of Rule 33 of the Rules. u] The enquiry was continued in the absence of the petitioner's representative, despite having intimated to the employer that the nominee earlier appointed had backed out. v] The application dated 23-03-2002 seeking permission to appoint a nominee on the enquiry committee was not considered by the management as well as the enquiry committee. w] Suspension allowance was not paid to the petitioner thereby weakening his defence. x] Stale, Vague and ambiguous charges have been levelled only to victimise the petitioner. y] Two additional charges at clause Nos. 6 and 7 were suo-moto introduced by the enquiry committee when the said charges were not levelled upon the petitioner in the charge sheet. z] Despite the petitioner having filed voluminous documents and also supplied a list of witnesses, the School Tribunal has concluded that no evidence has been led by the petitioner in the enquiry. aa] On 23-03-2002, the statement of the petitioner was recorded. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. aa] On 23-03-2002, the statement of the petitioner was recorded. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. ae] The procedure to conduct the enquiry laid down in Rule 37 has been disregarded and the enquiry was conducted in a slip-shod manner. af] The enquiry committee has not referred to any document produced by the petitioner and has delivered its findings by ignoring the documents and the evidence of the petitioner. ag] Though the petitioner was suspended on 20-12-2001 and eventually dismissed on 19-04-2002, suspension allowance was not paid to the petitioner. ah] The petitioner preferred representations dated 08-01-2002, 22-01-2002 and 04-03-2002 to the Education Officer raising a grievance that his suspension is continued and the enquiry is conducted against him without the payment of suspension allowance. The Education Officer by communication dated 03-05-2002 had directed the respondent to pay suspension allowance, as the management was under an obligation to pay the suspension allowance, but in vain. ai] By communication dated 18-07-2002, the Education Officer directed the management to reinstate the petitioner. aj] Rule 34 of the 1981 Rules prescribes the manner of payment of subsistence allowance and the components to be taken into account while calculating the said amount. ak] Rule 33(4) of the 1981 Rules mandates that an employee under suspension shall not leave the headquarter during the period of suspension without prior approval of the Chief Executive Officer. al] The petitioner's contention is that he has not violated Rule 33(4) and as such, the respondent- management was not justified in withholding the payment of subsistence allowance to the petitioner. am] One Mr. Murlidhar Kakade, who is President of the enquiry committee, was convicted of theft. Every month, there is a deduction from his salary as recovery of the theft amount. Yet he was appointed as a President of the enquiry committee. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. Every month, there is a deduction from his salary as recovery of the theft amount. Yet he was appointed as a President of the enquiry committee. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. The Presiding Officer School Tribunal & Ors. ii] 2010 (1) Mh.L.J. 359 Yavatmal Islamia Anglo Urdu Education Society Yavatmal and another Vs. Mujib Ahmed Abbas Ali & another iii] 2013 (3) All MR, 952 (SC) Shri Anant R. Kulkarni Vs. Y.P. Education Society & others. iv] 2014 (4) Mh.L.J. 556 Manohar Pandit Marathe Vs. President, Sharda Vidya Prasarak Mandal ap] It is, therefore, submitted that this petition deserves to be allowed and the petitioner deserves to be reinstated with continuity and full back wages. 5. Shri Deshpande, learned Advocate appearing on behalf of the management has submitted as under :- a] The charge sheet was served upon the petitioner on 19-01-2002. b] Decision to hold a Departmental Enquiry (DE) against the petitioner was taken by the management on 06-01-2002. c] The petitioner has not questioned the suspension allowance and, therefore, even if this issue appears to be a legal issue the petitioner should not be permitted to raise the said issue for the first time. (The petitioner pointed out Ground (d) from the appeal memo that a specific ground of non payment of subsistence allowance has been raised in the appeal) d] The petitioner along with another employee namely Smt. Pujari Ratan Uttamrao and Mohanrao Kakade had held a press conference at Ambajogai on 03-05-1999 and had defamed the management by making serious allegations against the President and Secretary of the management. e] The news appeared in 'Daily Lokmat' on 04-05-1999 thereby defaming the management. f] The defamatory news report dated 04-05-1999 gave a serious blow to the reputation of the management. g] On 31-05-1999 a show cause notice was issued to the petitioner, to which the petitioner replied by his reply on 05-06-1999. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. g] On 31-05-1999 a show cause notice was issued to the petitioner, to which the petitioner replied by his reply on 05-06-1999. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. j] Since the petitioner requested for eight days time on 23-03-2002 as his nominee had declined to continue on the enquiry committee, the enquiry was proceeded with, without giving the petitioner an adjournment as the enquiry was getting delayed. k] On the same day 23-03-2002, the evidence of the petitioner was recorded. l] On 30-03-2002, the management submitted its evidence in the form of statement of employees for proving the misconduct of the petitioner. m] The employees who gave the statement against the petitioner, were not subjected to any cross-examination by the petitioner. n] On 04-04-2002, the summary final notice was issued to the petitioner. o] The petitioner submitted his reply on 11-04-2002. p] On 15-04-2002, the committee submitted its report concluding that the petitioner was guilty of the charges levelled upon him. q] On 19-04-2002, the respondent terminated the service of the petitioner. r] Suspension allowance was rightly not paid as the petitioner did not mark his presence in the school premises. s] The above factors were duly considered by the School Tribunal and the appeal was rightly dismissed. t] Impugned judgment of the Tribunal indicates proper application of mind. u] Proper reasons are assigned in support of the impugned order. v] The Tribunal has dealt with every aspect raised by the litigating sides and the judgment is sustainable. w] Reliance is placed upon the following judgments :- i] 2004 (4) BCR 488, Sulochana Daulatrao Thakare Vs. sangam Shikshan Sanstha and others ii] 2012 (3) Mh.L.J. 291 Mohd. Irshad Ahmad Vs. Talha Education Society Karjagaon and others iii] 2006 (6) BCR 695 Datta Shikshan Prasarak Mandal & Anr. Vs. Dinkar Krishna Gawade. 6. Considering the conspectus of this case, I have formulated the following issues :- A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? 6. Considering the conspectus of this case, I have formulated the following issues :- A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? E] Was the enquiry committee justified in framing two additional charges suo-moto? F] Whether the charges held to be proved against the petitioner are grave and serious in nature and whether the punishment awarded to the petitioner is commensurate to the gravity and seriousness of the misconduct. A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? 7. Rule 29 of the 1981 Rules prescribes reduction in rank and termination of service as penalties. Under Rule 31, reduction in rank and termination of service are prescribed as major penalties. 8. Section 4(6) of the Act mandates that no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the management, except in accordance with the provisions of this Act and the Rules made thereunder. Needless to state, the Rules framed under the Act need to followed in the light of Section 4(6) of the Act. 9. Rule 33 (1) of the 1981 Rules reads thus :- 33. Procedure for inflicting major penalties : (1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employer under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College Education and Technical High Schools, of the Deputy Director. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such order. 10. Rule 36 (1) and (2) of the 1981 Rules read as under :- 36. Inquiry Committee : (1) If an employee is allegedly found to be guilty on [any of the grounds specified in sub-rule (5) of Rule 28] and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the Head concerned by registered post acknowledgement due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations. [(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in such rule (1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say- (a) In the case of an employee – (i) One member from amongst the members of the Management to be nominated by the Management, or by the President of the Management if so authorised by the Management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of decision of the Management. (ii) one member to be nominated by the employee from amongst the employees of any private school; (iii) One member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred; (b) In the case of the Head referred to Sub-rule (1)- (i) one member who shall be the President of the Management; (ii) one member to be nominated by the Head from amongst the employees of any private school; (iii) one member chosen by the President from the panel of Head Masters on whom State /National Award has been conferred.] 11. In the light of Rule 33(1), the management is first required to decide whether to hold an enquiry and also whether to place the employee under suspension after obtaining permission from the concerned Education Department. 12. The grievance of the petitioner is that he received the show-cause notice dated 14-12-2001 on 19-01-2002. This aspect has been admitted by the respondent – Management as has been recorded here-in-above. It is also an admitted position that the petitioner submitted his reply dated 22-01-2002 to the show-cause notice. The communication dated 06-01-2002 issued to the petitioner by the management indicates that the management decided to initiate an enquiry on the presumption that the petitioner may have accepted the charges levelled upon him. 13. The fact that the respondent has admitted that the petitioner received, the show-cause notice on 19-01-2002, clearly indicates that it did not have any proof on 06-01-2002 to suggest that the petitioner was served with the show-cause notice dated 14-12-2001 so as to arrive at a conclusion that the petitioner appeared to have admitted the charges levelled upon him. As such, in my view, the respondent initiated the enquiry without considering the reply of the petitioner and has therefore violated Rule 33 & 36. B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? 14. It is not in dispute that the petitioner had nominated his nominee. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. During the course of the submissions of the learned Advocate for the respondent, I had specifically drawn his attention to the said application dated 23-03-2002 and invited his explanation on the said aspect. His submissions are that the enquiry committee is not obliged to entertain such a request from the charge sheeted employee. He has to ensure that his nominee appointed on the committee performed his duties of being a part of the enquiry committee. It was, therefore, submitted that neither the committee can be blamed, nor was the committee obliged to adjourn the enquiry. 16. I am unable to accept the contentions of the respondent. The petitioner had only prayed for eight days time so as to nominate another person in place of his earlier nominee who had backed out from the enquiry proceedings. I am also unable to accept the contention of the respondent that by granting eight days time to the petitioner, it would have unduly delayed the enquiry. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. Inquiry Committee : [(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub-rule (2) by registered post acknowledgement due to the employee or the Head referred to in sub-rule (1), as the case may be, directing him to nominate a person on his behalf on the proposed Inquiry Committee and to forward the name along with the written consent of the person so nominated to the Chief Executive Officer or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect.] (4) If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within the stipulated period, the inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as, provided in sub-rule (2). [(5) The Convener of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the inquiry.] Judgment 1. Rule. Rule made returnable forthwith by the consent of the parties and heard finally. 2. The petitioner/employee is aggrieved by the judgment and order dated 22-12-2011 delivered by the School Tribunal whereby his Appeal No. 57 of 2002 has been dismissed. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. The contentions of the petitioner in the light of the memo of admitted facts dated 28-01-2015 and oral submissions are summarised as under :- a] The petitioner has acquired the degree of Master of Arts and Bachelor of Education (M.A.B.Ed.) b] He was appointed on 15-07-1991 as a secondary school teacher. c] The petitioner and the respondent-management are covered by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (here-in-after referred to as the “ MEPS Act”) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (here-in-after referred to as the “ M.E.P.S. Rules”). d] On 20-12-2001, the petitioner was placed under suspension. e] The suspension order does not indicate that the petitioner was under an obligation or was ordered to mark his attendance in the school premises on the attendance register as a precondition for earning his suspension allowance. f] The resolution to suspend the petitioner was passed on 26-11-2001 which does not mention that the petitioner would not earn his suspension allowance if he did not mark his presence each day in the school attendance register. g] A final show-cause notice was issued on 14-12-2001. h] The petitioner received the said notice on 19-01-2002. i] The petitioner replied to the show cause notice on 22-01-2002. j] Before the petitioner received the notice and before he could submit his reply, the management arrived at a decision to conduct an enquiry and issued the letter for initiating an enquiry on 06-01-2002. k] A notice dated 06-01-2002 was issued to the petitioner to appoint his nominee on the enquiry committee. l] By letter dated 07-02-2002, the petitioner appointed his nominee on the enquiry committee. m] The charge sheet dated 25-02-2002 was issued to the petitioner setting out the charges as under :- i] Not residing within the head quarters. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. o] On 23-03-2002 the petitioner informed the enquiry committee that his nominee had developed cold feet and thus withdrew himself as his nominee on the enquiry committee. He prayed for eight days time to nominate a new nominee. p] Despite the above, the management continued with the enquiry without permitting the petitioner to nominate his nominee on the committee and recorded his evidence on the same day 23-03-2002. q] The enquiry was conducted by only two members. r] The enquiry report was submitted on 15-04-2002. s] The petitioner was terminated from employment on 19-04-2002. t] The management had decided to conduct the enquiry without considering the reply of the petitioner in violation of Rule 33 of the Rules. u] The enquiry was continued in the absence of the petitioner's representative, despite having intimated to the employer that the nominee earlier appointed had backed out. v] The application dated 23-03-2002 seeking permission to appoint a nominee on the enquiry committee was not considered by the management as well as the enquiry committee. w] Suspension allowance was not paid to the petitioner thereby weakening his defence. x] Stale, Vague and ambiguous charges have been levelled only to victimise the petitioner. y] Two additional charges at clause Nos. 6 and 7 were suo-moto introduced by the enquiry committee when the said charges were not levelled upon the petitioner in the charge sheet. z] Despite the petitioner having filed voluminous documents and also supplied a list of witnesses, the School Tribunal has concluded that no evidence has been led by the petitioner in the enquiry. aa] On 23-03-2002, the statement of the petitioner was recorded. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. ae] The procedure to conduct the enquiry laid down in Rule 37 has been disregarded and the enquiry was conducted in a slip-shod manner. af] The enquiry committee has not referred to any document produced by the petitioner and has delivered its findings by ignoring the documents and the evidence of the petitioner. ag] Though the petitioner was suspended on 20-12-2001 and eventually dismissed on 19-04-2002, suspension allowance was not paid to the petitioner. ah] The petitioner preferred representations dated 08-01-2002, 22-01-2002 and 04-03-2002 to the Education Officer raising a grievance that his suspension is continued and the enquiry is conducted against him without the payment of suspension allowance. The Education Officer by communication dated 03-05-2002 had directed the respondent to pay suspension allowance, as the management was under an obligation to pay the suspension allowance, but in vain. ai] By communication dated 18-07-2002, the Education Officer directed the management to reinstate the petitioner. aj] Rule 34 of the 1981 Rules prescribes the manner of payment of subsistence allowance and the components to be taken into account while calculating the said amount. ak] Rule 33(4) of the 1981 Rules mandates that an employee under suspension shall not leave the headquarter during the period of suspension without prior approval of the Chief Executive Officer. al] The petitioner's contention is that he has not violated Rule 33(4) and as such, the respondent- management was not justified in withholding the payment of subsistence allowance to the petitioner. am] One Mr. Murlidhar Kakade, who is President of the enquiry committee, was convicted of theft. Every month, there is a deduction from his salary as recovery of the theft amount. Yet he was appointed as a President of the enquiry committee. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. The Presiding Officer School Tribunal & Ors. ii] 2010 (1) Mh.L.J. 359 Yavatmal Islamia Anglo Urdu Education Society Yavatmal and another Vs. Mujib Ahmed Abbas Ali & another iii] 2013 (3) All MR, 952 (SC) Shri Anant R. Kulkarni Vs. Y.P. Education Society & others. iv] 2014 (4) Mh.L.J. 556 Manohar Pandit Marathe Vs. President, Sharda Vidya Prasarak Mandal ap] It is, therefore, submitted that this petition deserves to be allowed and the petitioner deserves to be reinstated with continuity and full back wages. 5. Shri Deshpande, learned Advocate appearing on behalf of the management has submitted as under :- a] The charge sheet was served upon the petitioner on 19-01-2002. b] Decision to hold a Departmental Enquiry (DE) against the petitioner was taken by the management on 06-01-2002. c] The petitioner has not questioned the suspension allowance and, therefore, even if this issue appears to be a legal issue the petitioner should not be permitted to raise the said issue for the first time. (The petitioner pointed out Ground (d) from the appeal memo that a specific ground of non payment of subsistence allowance has been raised in the appeal) d] The petitioner along with another employee namely Smt. Pujari Ratan Uttamrao and Mohanrao Kakade had held a press conference at Ambajogai on 03-05-1999 and had defamed the management by making serious allegations against the President and Secretary of the management. e] The news appeared in 'Daily Lokmat' on 04-05-1999 thereby defaming the management. f] The defamatory news report dated 04-05-1999 gave a serious blow to the reputation of the management. g] On 31-05-1999 a show cause notice was issued to the petitioner, to which the petitioner replied by his reply on 05-06-1999. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. j] Since the petitioner requested for eight days time on 23-03-2002 as his nominee had declined to continue on the enquiry committee, the enquiry was proceeded with, without giving the petitioner an adjournment as the enquiry was getting delayed. k] On the same day 23-03-2002, the evidence of the petitioner was recorded. l] On 30-03-2002, the management submitted its evidence in the form of statement of employees for proving the misconduct of the petitioner. m] The employees who gave the statement against the petitioner, were not subjected to any cross-examination by the petitioner. n] On 04-04-2002, the summary final notice was issued to the petitioner. o] The petitioner submitted his reply on 11-04-2002. p] On 15-04-2002, the committee submitted its report concluding that the petitioner was guilty of the charges levelled upon him. q] On 19-04-2002, the respondent terminated the service of the petitioner. r] Suspension allowance was rightly not paid as the petitioner did not mark his presence in the school premises. s] The above factors were duly considered by the School Tribunal and the appeal was rightly dismissed. t] Impugned judgment of the Tribunal indicates proper application of mind. u] Proper reasons are assigned in support of the impugned order. v] The Tribunal has dealt with every aspect raised by the litigating sides and the judgment is sustainable. w] Reliance is placed upon the following judgments :- i] 2004 (4) BCR 488, Sulochana Daulatrao Thakare Vs. sangam Shikshan Sanstha and others ii] 2012 (3) Mh.L.J. 291 Mohd. Irshad Ahmad Vs. Talha Education Society Karjagaon and others iii] 2006 (6) BCR 695 Datta Shikshan Prasarak Mandal & Anr. Vs. Dinkar Krishna Gawade. 6. Considering the conspectus of this case, I have formulated the following issues :- A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? E] Was the enquiry committee justified in framing two additional charges suo-moto? F] Whether the charges held to be proved against the petitioner are grave and serious in nature and whether the punishment awarded to the petitioner is commensurate to the gravity and seriousness of the misconduct. A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? 7. Rule 29 of the 1981 Rules prescribes reduction in rank and termination of service as penalties. Under Rule 31, reduction in rank and termination of service are prescribed as major penalties. 8. Section 4(6) of the Act mandates that no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the management, except in accordance with the provisions of this Act and the Rules made thereunder. Needless to state, the Rules framed under the Act need to followed in the light of Section 4(6) of the Act. 9. Rule 33 (1) of the 1981 Rules reads thus :- 33. Procedure for inflicting major penalties : (1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employer under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College Education and Technical High Schools, of the Deputy Director. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such order. 10. Rule 36 (1) and (2) of the 1981 Rules read as under :- 36. Inquiry Committee : (1) If an employee is allegedly found to be guilty on [any of the grounds specified in sub-rule (5) of Rule 28] and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the Head concerned by registered post acknowledgement due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations. [(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in such rule (1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say- (a) In the case of an employee – (i) One member from amongst the members of the Management to be nominated by the Management, or by the President of the Management if so authorised by the Management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of decision of the Management. (ii) one member to be nominated by the employee from amongst the employees of any private school; (iii) One member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred; (b) In the case of the Head referred to Sub-rule (1)- (i) one member who shall be the President of the Management; (ii) one member to be nominated by the Head from amongst the employees of any private school; (iii) one member chosen by the President from the panel of Head Masters on whom State /National Award has been conferred.] 11. In the light of Rule 33(1), the management is first required to decide whether to hold an enquiry and also whether to place the employee under suspension after obtaining permission from the concerned Education Department. 12. The grievance of the petitioner is that he received the show-cause notice dated 14-12-2001 on 19-01-2002. This aspect has been admitted by the respondent – Management as has been recorded here-in-above. It is also an admitted position that the petitioner submitted his reply dated 22-01-2002 to the show-cause notice. The communication dated 06-01-2002 issued to the petitioner by the management indicates that the management decided to initiate an enquiry on the presumption that the petitioner may have accepted the charges levelled upon him. 13. The fact that the respondent has admitted that the petitioner received, the show-cause notice on 19-01-2002, clearly indicates that it did not have any proof on 06-01-2002 to suggest that the petitioner was served with the show-cause notice dated 14-12-2001 so as to arrive at a conclusion that the petitioner appeared to have admitted the charges levelled upon him. As such, in my view, the respondent initiated the enquiry without considering the reply of the petitioner and has therefore violated Rule 33 & 36. B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? 14. It is not in dispute that the petitioner had nominated his nominee. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. During the course of the submissions of the learned Advocate for the respondent, I had specifically drawn his attention to the said application dated 23-03-2002 and invited his explanation on the said aspect. His submissions are that the enquiry committee is not obliged to entertain such a request from the charge sheeted employee. He has to ensure that his nominee appointed on the committee performed his duties of being a part of the enquiry committee. It was, therefore, submitted that neither the committee can be blamed, nor was the committee obliged to adjourn the enquiry. 16. I am unable to accept the contentions of the respondent. The petitioner had only prayed for eight days time so as to nominate another person in place of his earlier nominee who had backed out from the enquiry proceedings. I am also unable to accept the contention of the respondent that by granting eight days time to the petitioner, it would have unduly delayed the enquiry. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. Inquiry Committee : [(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub-rule (2) by registered post acknowledgement due to the employee or the Head referred to in sub-rule (1), as the case may be, directing him to nominate a person on his behalf on the proposed Inquiry Committee and to forward the name along with the written consent of the person so nominated to the Chief Executive Officer or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect.] (4) If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within the stipulated period, the inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as, provided in sub-rule (2). [(5) The Convener of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the inquiry.] Judgment 1. Rule. Rule made returnable forthwith by the consent of the parties and heard finally. 2. The petitioner/employee is aggrieved by the judgment and order dated 22-12-2011 delivered by the School Tribunal whereby his Appeal No. 57 of 2002 has been dismissed. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. The contentions of the petitioner in the light of the memo of admitted facts dated 28-01-2015 and oral submissions are summarised as under :- a] The petitioner has acquired the degree of Master of Arts and Bachelor of Education (M.A.B.Ed.) b] He was appointed on 15-07-1991 as a secondary school teacher. c] The petitioner and the respondent-management are covered by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (here-in-after referred to as the “ MEPS Act”) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (here-in-after referred to as the “ M.E.P.S. Rules”). d] On 20-12-2001, the petitioner was placed under suspension. e] The suspension order does not indicate that the petitioner was under an obligation or was ordered to mark his attendance in the school premises on the attendance register as a precondition for earning his suspension allowance. f] The resolution to suspend the petitioner was passed on 26-11-2001 which does not mention that the petitioner would not earn his suspension allowance if he did not mark his presence each day in the school attendance register. g] A final show-cause notice was issued on 14-12-2001. h] The petitioner received the said notice on 19-01-2002. i] The petitioner replied to the show cause notice on 22-01-2002. j] Before the petitioner received the notice and before he could submit his reply, the management arrived at a decision to conduct an enquiry and issued the letter for initiating an enquiry on 06-01-2002. k] A notice dated 06-01-2002 was issued to the petitioner to appoint his nominee on the enquiry committee. l] By letter dated 07-02-2002, the petitioner appointed his nominee on the enquiry committee. m] The charge sheet dated 25-02-2002 was issued to the petitioner setting out the charges as under :- i] Not residing within the head quarters. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. o] On 23-03-2002 the petitioner informed the enquiry committee that his nominee had developed cold feet and thus withdrew himself as his nominee on the enquiry committee. He prayed for eight days time to nominate a new nominee. p] Despite the above, the management continued with the enquiry without permitting the petitioner to nominate his nominee on the committee and recorded his evidence on the same day 23-03-2002. q] The enquiry was conducted by only two members. r] The enquiry report was submitted on 15-04-2002. s] The petitioner was terminated from employment on 19-04-2002. t] The management had decided to conduct the enquiry without considering the reply of the petitioner in violation of Rule 33 of the Rules. u] The enquiry was continued in the absence of the petitioner's representative, despite having intimated to the employer that the nominee earlier appointed had backed out. v] The application dated 23-03-2002 seeking permission to appoint a nominee on the enquiry committee was not considered by the management as well as the enquiry committee. w] Suspension allowance was not paid to the petitioner thereby weakening his defence. x] Stale, Vague and ambiguous charges have been levelled only to victimise the petitioner. y] Two additional charges at clause Nos. 6 and 7 were suo-moto introduced by the enquiry committee when the said charges were not levelled upon the petitioner in the charge sheet. z] Despite the petitioner having filed voluminous documents and also supplied a list of witnesses, the School Tribunal has concluded that no evidence has been led by the petitioner in the enquiry. aa] On 23-03-2002, the statement of the petitioner was recorded. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. ae] The procedure to conduct the enquiry laid down in Rule 37 has been disregarded and the enquiry was conducted in a slip-shod manner. af] The enquiry committee has not referred to any document produced by the petitioner and has delivered its findings by ignoring the documents and the evidence of the petitioner. ag] Though the petitioner was suspended on 20-12-2001 and eventually dismissed on 19-04-2002, suspension allowance was not paid to the petitioner. ah] The petitioner preferred representations dated 08-01-2002, 22-01-2002 and 04-03-2002 to the Education Officer raising a grievance that his suspension is continued and the enquiry is conducted against him without the payment of suspension allowance. The Education Officer by communication dated 03-05-2002 had directed the respondent to pay suspension allowance, as the management was under an obligation to pay the suspension allowance, but in vain. ai] By communication dated 18-07-2002, the Education Officer directed the management to reinstate the petitioner. aj] Rule 34 of the 1981 Rules prescribes the manner of payment of subsistence allowance and the components to be taken into account while calculating the said amount. ak] Rule 33(4) of the 1981 Rules mandates that an employee under suspension shall not leave the headquarter during the period of suspension without prior approval of the Chief Executive Officer. al] The petitioner's contention is that he has not violated Rule 33(4) and as such, the respondent- management was not justified in withholding the payment of subsistence allowance to the petitioner. am] One Mr. Murlidhar Kakade, who is President of the enquiry committee, was convicted of theft. Every month, there is a deduction from his salary as recovery of the theft amount. Yet he was appointed as a President of the enquiry committee. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. The Presiding Officer School Tribunal & Ors. ii] 2010 (1) Mh.L.J. 359 Yavatmal Islamia Anglo Urdu Education Society Yavatmal and another Vs. Mujib Ahmed Abbas Ali & another iii] 2013 (3) All MR, 952 (SC) Shri Anant R. Kulkarni Vs. Y.P. Education Society & others. iv] 2014 (4) Mh.L.J. 556 Manohar Pandit Marathe Vs. President, Sharda Vidya Prasarak Mandal ap] It is, therefore, submitted that this petition deserves to be allowed and the petitioner deserves to be reinstated with continuity and full back wages. 5. Shri Deshpande, learned Advocate appearing on behalf of the management has submitted as under :- a] The charge sheet was served upon the petitioner on 19-01-2002. b] Decision to hold a Departmental Enquiry (DE) against the petitioner was taken by the management on 06-01-2002. c] The petitioner has not questioned the suspension allowance and, therefore, even if this issue appears to be a legal issue the petitioner should not be permitted to raise the said issue for the first time. (The petitioner pointed out Ground (d) from the appeal memo that a specific ground of non payment of subsistence allowance has been raised in the appeal) d] The petitioner along with another employee namely Smt. Pujari Ratan Uttamrao and Mohanrao Kakade had held a press conference at Ambajogai on 03-05-1999 and had defamed the management by making serious allegations against the President and Secretary of the management. e] The news appeared in 'Daily Lokmat' on 04-05-1999 thereby defaming the management. f] The defamatory news report dated 04-05-1999 gave a serious blow to the reputation of the management. g] On 31-05-1999 a show cause notice was issued to the petitioner, to which the petitioner replied by his reply on 05-06-1999. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. j] Since the petitioner requested for eight days time on 23-03-2002 as his nominee had declined to continue on the enquiry committee, the enquiry was proceeded with, without giving the petitioner an adjournment as the enquiry was getting delayed. k] On the same day 23-03-2002, the evidence of the petitioner was recorded. l] On 30-03-2002, the management submitted its evidence in the form of statement of employees for proving the misconduct of the petitioner. m] The employees who gave the statement against the petitioner, were not subjected to any cross-examination by the petitioner. n] On 04-04-2002, the summary final notice was issued to the petitioner. o] The petitioner submitted his reply on 11-04-2002. p] On 15-04-2002, the committee submitted its report concluding that the petitioner was guilty of the charges levelled upon him. q] On 19-04-2002, the respondent terminated the service of the petitioner. r] Suspension allowance was rightly not paid as the petitioner did not mark his presence in the school premises. s] The above factors were duly considered by the School Tribunal and the appeal was rightly dismissed. t] Impugned judgment of the Tribunal indicates proper application of mind. u] Proper reasons are assigned in support of the impugned order. v] The Tribunal has dealt with every aspect raised by the litigating sides and the judgment is sustainable. w] Reliance is placed upon the following judgments :- i] 2004 (4) BCR 488, Sulochana Daulatrao Thakare Vs. sangam Shikshan Sanstha and others ii] 2012 (3) Mh.L.J. 291 Mohd. Irshad Ahmad Vs. Talha Education Society Karjagaon and others iii] 2006 (6) BCR 695 Datta Shikshan Prasarak Mandal & Anr. Vs. Dinkar Krishna Gawade. 6. Considering the conspectus of this case, I have formulated the following issues :- A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? E] Was the enquiry committee justified in framing two additional charges suo-moto? F] Whether the charges held to be proved against the petitioner are grave and serious in nature and whether the punishment awarded to the petitioner is commensurate to the gravity and seriousness of the misconduct. A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? 7. Rule 29 of the 1981 Rules prescribes reduction in rank and termination of service as penalties. Under Rule 31, reduction in rank and termination of service are prescribed as major penalties. 8. Section 4(6) of the Act mandates that no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the management, except in accordance with the provisions of this Act and the Rules made thereunder. Needless to state, the Rules framed under the Act need to followed in the light of Section 4(6) of the Act. 9. Rule 33 (1) of the 1981 Rules reads thus :- 33. Procedure for inflicting major penalties : (1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employer under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College Education and Technical High Schools, of the Deputy Director. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such order. 10. Rule 36 (1) and (2) of the 1981 Rules read as under :- 36. Inquiry Committee : (1) If an employee is allegedly found to be guilty on [any of the grounds specified in sub-rule (5) of Rule 28] and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the Head concerned by registered post acknowledgement due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations. [(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in such rule (1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say- (a) In the case of an employee – (i) One member from amongst the members of the Management to be nominated by the Management, or by the President of the Management if so authorised by the Management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of decision of the Management. (ii) one member to be nominated by the employee from amongst the employees of any private school; (iii) One member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred; (b) In the case of the Head referred to Sub-rule (1)- (i) one member who shall be the President of the Management; (ii) one member to be nominated by the Head from amongst the employees of any private school; (iii) one member chosen by the President from the panel of Head Masters on whom State /National Award has been conferred.] 11. In the light of Rule 33(1), the management is first required to decide whether to hold an enquiry and also whether to place the employee under suspension after obtaining permission from the concerned Education Department. 12. The grievance of the petitioner is that he received the show-cause notice dated 14-12-2001 on 19-01-2002. This aspect has been admitted by the respondent – Management as has been recorded here-in-above. It is also an admitted position that the petitioner submitted his reply dated 22-01-2002 to the show-cause notice. The communication dated 06-01-2002 issued to the petitioner by the management indicates that the management decided to initiate an enquiry on the presumption that the petitioner may have accepted the charges levelled upon him. 13. The fact that the respondent has admitted that the petitioner received, the show-cause notice on 19-01-2002, clearly indicates that it did not have any proof on 06-01-2002 to suggest that the petitioner was served with the show-cause notice dated 14-12-2001 so as to arrive at a conclusion that the petitioner appeared to have admitted the charges levelled upon him. As such, in my view, the respondent initiated the enquiry without considering the reply of the petitioner and has therefore violated Rule 33 & 36. B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? 14. It is not in dispute that the petitioner had nominated his nominee. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. During the course of the submissions of the learned Advocate for the respondent, I had specifically drawn his attention to the said application dated 23-03-2002 and invited his explanation on the said aspect. His submissions are that the enquiry committee is not obliged to entertain such a request from the charge sheeted employee. He has to ensure that his nominee appointed on the committee performed his duties of being a part of the enquiry committee. It was, therefore, submitted that neither the committee can be blamed, nor was the committee obliged to adjourn the enquiry. 16. I am unable to accept the contentions of the respondent. The petitioner had only prayed for eight days time so as to nominate another person in place of his earlier nominee who had backed out from the enquiry proceedings. I am also unable to accept the contention of the respondent that by granting eight days time to the petitioner, it would have unduly delayed the enquiry. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. Inquiry Committee : [(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub-rule (2) by registered post acknowledgement due to the employee or the Head referred to in sub-rule (1), as the case may be, directing him to nominate a person on his behalf on the proposed Inquiry Committee and to forward the name along with the written consent of the person so nominated to the Chief Executive Officer or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect.] (4) If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within the stipulated period, the inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as, provided in sub-rule (2). [(5) The Convener of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the inquiry.] Judgment 1. Rule. Rule made returnable forthwith by the consent of the parties and heard finally. 2. The petitioner/employee is aggrieved by the judgment and order dated 22-12-2011 delivered by the School Tribunal whereby his Appeal No. 57 of 2002 has been dismissed. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. 3. The said Appeal was earlier dismissed by judgment and order dated 14-10-2010 which was quashed and set aside by this Court by its order dated 06-04-2011 passed in Writ Petition No. 11668 of 2010. The appeal was restored on 28-04-2011 and was reheard. 4. The contentions of the petitioner in the light of the memo of admitted facts dated 28-01-2015 and oral submissions are summarised as under :- a] The petitioner has acquired the degree of Master of Arts and Bachelor of Education (M.A.B.Ed.) b] He was appointed on 15-07-1991 as a secondary school teacher. c] The petitioner and the respondent-management are covered by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (here-in-after referred to as the “ MEPS Act”) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (here-in-after referred to as the “ M.E.P.S. Rules”). d] On 20-12-2001, the petitioner was placed under suspension. e] The suspension order does not indicate that the petitioner was under an obligation or was ordered to mark his attendance in the school premises on the attendance register as a precondition for earning his suspension allowance. f] The resolution to suspend the petitioner was passed on 26-11-2001 which does not mention that the petitioner would not earn his suspension allowance if he did not mark his presence each day in the school attendance register. g] A final show-cause notice was issued on 14-12-2001. h] The petitioner received the said notice on 19-01-2002. i] The petitioner replied to the show cause notice on 22-01-2002. j] Before the petitioner received the notice and before he could submit his reply, the management arrived at a decision to conduct an enquiry and issued the letter for initiating an enquiry on 06-01-2002. k] A notice dated 06-01-2002 was issued to the petitioner to appoint his nominee on the enquiry committee. l] By letter dated 07-02-2002, the petitioner appointed his nominee on the enquiry committee. m] The charge sheet dated 25-02-2002 was issued to the petitioner setting out the charges as under :- i] Not residing within the head quarters. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. ii] Not following the time table. iii] Creating a discord amongst the teachers. iv] defamed the school in a newspaper interview. v] Not accepting communication from the management. n] The petitioner replied to the charge sheet on 05-03-2002 which was accompanied with several documents in support of his case. o] On 23-03-2002 the petitioner informed the enquiry committee that his nominee had developed cold feet and thus withdrew himself as his nominee on the enquiry committee. He prayed for eight days time to nominate a new nominee. p] Despite the above, the management continued with the enquiry without permitting the petitioner to nominate his nominee on the committee and recorded his evidence on the same day 23-03-2002. q] The enquiry was conducted by only two members. r] The enquiry report was submitted on 15-04-2002. s] The petitioner was terminated from employment on 19-04-2002. t] The management had decided to conduct the enquiry without considering the reply of the petitioner in violation of Rule 33 of the Rules. u] The enquiry was continued in the absence of the petitioner's representative, despite having intimated to the employer that the nominee earlier appointed had backed out. v] The application dated 23-03-2002 seeking permission to appoint a nominee on the enquiry committee was not considered by the management as well as the enquiry committee. w] Suspension allowance was not paid to the petitioner thereby weakening his defence. x] Stale, Vague and ambiguous charges have been levelled only to victimise the petitioner. y] Two additional charges at clause Nos. 6 and 7 were suo-moto introduced by the enquiry committee when the said charges were not levelled upon the petitioner in the charge sheet. z] Despite the petitioner having filed voluminous documents and also supplied a list of witnesses, the School Tribunal has concluded that no evidence has been led by the petitioner in the enquiry. aa] On 23-03-2002, the statement of the petitioner was recorded. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. He was thereafter cross-examined. ab] No date of enquiry was posted after 23-03-2002. ac] Management recorded its evidence on 30-03-2002, after the recording of the petitioner's evidence. ad] On 04-04-2002 documents were supplied by the management (which the petitioner had been seeking for a long time) after the statement of the petitioner in defence was recorded on 23-03-2002. ae] The procedure to conduct the enquiry laid down in Rule 37 has been disregarded and the enquiry was conducted in a slip-shod manner. af] The enquiry committee has not referred to any document produced by the petitioner and has delivered its findings by ignoring the documents and the evidence of the petitioner. ag] Though the petitioner was suspended on 20-12-2001 and eventually dismissed on 19-04-2002, suspension allowance was not paid to the petitioner. ah] The petitioner preferred representations dated 08-01-2002, 22-01-2002 and 04-03-2002 to the Education Officer raising a grievance that his suspension is continued and the enquiry is conducted against him without the payment of suspension allowance. The Education Officer by communication dated 03-05-2002 had directed the respondent to pay suspension allowance, as the management was under an obligation to pay the suspension allowance, but in vain. ai] By communication dated 18-07-2002, the Education Officer directed the management to reinstate the petitioner. aj] Rule 34 of the 1981 Rules prescribes the manner of payment of subsistence allowance and the components to be taken into account while calculating the said amount. ak] Rule 33(4) of the 1981 Rules mandates that an employee under suspension shall not leave the headquarter during the period of suspension without prior approval of the Chief Executive Officer. al] The petitioner's contention is that he has not violated Rule 33(4) and as such, the respondent- management was not justified in withholding the payment of subsistence allowance to the petitioner. am] One Mr. Murlidhar Kakade, who is President of the enquiry committee, was convicted of theft. Every month, there is a deduction from his salary as recovery of the theft amount. Yet he was appointed as a President of the enquiry committee. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. an] In the inquiry report, additional charges at clause Nos. 6 and 7, which were not mentioned in the charge sheet, have been held to be proved against the petitioner. ao] The petitioner relies upon the following judgments in support of his case :- i] 2007 (5) ALL MR 893 Shri Dnyneshwar Samaj Prabodhan Sanstha Vs. The Presiding Officer School Tribunal & Ors. ii] 2010 (1) Mh.L.J. 359 Yavatmal Islamia Anglo Urdu Education Society Yavatmal and another Vs. Mujib Ahmed Abbas Ali & another iii] 2013 (3) All MR, 952 (SC) Shri Anant R. Kulkarni Vs. Y.P. Education Society & others. iv] 2014 (4) Mh.L.J. 556 Manohar Pandit Marathe Vs. President, Sharda Vidya Prasarak Mandal ap] It is, therefore, submitted that this petition deserves to be allowed and the petitioner deserves to be reinstated with continuity and full back wages. 5. Shri Deshpande, learned Advocate appearing on behalf of the management has submitted as under :- a] The charge sheet was served upon the petitioner on 19-01-2002. b] Decision to hold a Departmental Enquiry (DE) against the petitioner was taken by the management on 06-01-2002. c] The petitioner has not questioned the suspension allowance and, therefore, even if this issue appears to be a legal issue the petitioner should not be permitted to raise the said issue for the first time. (The petitioner pointed out Ground (d) from the appeal memo that a specific ground of non payment of subsistence allowance has been raised in the appeal) d] The petitioner along with another employee namely Smt. Pujari Ratan Uttamrao and Mohanrao Kakade had held a press conference at Ambajogai on 03-05-1999 and had defamed the management by making serious allegations against the President and Secretary of the management. e] The news appeared in 'Daily Lokmat' on 04-05-1999 thereby defaming the management. f] The defamatory news report dated 04-05-1999 gave a serious blow to the reputation of the management. g] On 31-05-1999 a show cause notice was issued to the petitioner, to which the petitioner replied by his reply on 05-06-1999. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. h] On 26-11-2001, (after about 28 months) the management decided to seek permission from the Education Department to suspend the petitioner pending disciplinary action. i] Since the nominee of the petitioner withdrew from the enquiry, the enquiry was conducted by only two members. j] Since the petitioner requested for eight days time on 23-03-2002 as his nominee had declined to continue on the enquiry committee, the enquiry was proceeded with, without giving the petitioner an adjournment as the enquiry was getting delayed. k] On the same day 23-03-2002, the evidence of the petitioner was recorded. l] On 30-03-2002, the management submitted its evidence in the form of statement of employees for proving the misconduct of the petitioner. m] The employees who gave the statement against the petitioner, were not subjected to any cross-examination by the petitioner. n] On 04-04-2002, the summary final notice was issued to the petitioner. o] The petitioner submitted his reply on 11-04-2002. p] On 15-04-2002, the committee submitted its report concluding that the petitioner was guilty of the charges levelled upon him. q] On 19-04-2002, the respondent terminated the service of the petitioner. r] Suspension allowance was rightly not paid as the petitioner did not mark his presence in the school premises. s] The above factors were duly considered by the School Tribunal and the appeal was rightly dismissed. t] Impugned judgment of the Tribunal indicates proper application of mind. u] Proper reasons are assigned in support of the impugned order. v] The Tribunal has dealt with every aspect raised by the litigating sides and the judgment is sustainable. w] Reliance is placed upon the following judgments :- i] 2004 (4) BCR 488, Sulochana Daulatrao Thakare Vs. sangam Shikshan Sanstha and others ii] 2012 (3) Mh.L.J. 291 Mohd. Irshad Ahmad Vs. Talha Education Society Karjagaon and others iii] 2006 (6) BCR 695 Datta Shikshan Prasarak Mandal & Anr. Vs. Dinkar Krishna Gawade. 6. Considering the conspectus of this case, I have formulated the following issues :- A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? C] Whether the petitioner was rightly deprived of the suspension allowance? D] Whether the enquiry Committee followed the correct procedure while recording the evidence of the petitioner and the management? E] Was the enquiry committee justified in framing two additional charges suo-moto? F] Whether the charges held to be proved against the petitioner are grave and serious in nature and whether the punishment awarded to the petitioner is commensurate to the gravity and seriousness of the misconduct. A] Whether the management has followed the procedure while taking a decision to initiate an enquiry against the petitioner? 7. Rule 29 of the 1981 Rules prescribes reduction in rank and termination of service as penalties. Under Rule 31, reduction in rank and termination of service are prescribed as major penalties. 8. Section 4(6) of the Act mandates that no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the management, except in accordance with the provisions of this Act and the Rules made thereunder. Needless to state, the Rules framed under the Act need to followed in the light of Section 4(6) of the Act. 9. Rule 33 (1) of the 1981 Rules reads thus :- 33. Procedure for inflicting major penalties : (1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employer under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College Education and Technical High Schools, of the Deputy Director. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such order. 10. Rule 36 (1) and (2) of the 1981 Rules read as under :- 36. Inquiry Committee : (1) If an employee is allegedly found to be guilty on [any of the grounds specified in sub-rule (5) of Rule 28] and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf (and in the case of an inquiry against the Head who is also the Chief Executive Officer, the President of the Management) shall communicate to the employee or the Head concerned by registered post acknowledgement due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations. [(2) If the Chief Executive Officer or the President, as the case may be, finds that the explanation submitted by the employee or the Head referred to in such rule (1) is not satisfactory, he shall place it before the Management within fifteen days from the date of receipt of the explanation. The management shall in turn decide within fifteen days whether an inquiry be conducted against the employee and if it decides to conduct the inquiry, the inquiry shall be conducted by an Inquiry Committee constituted in the following manner, that is to say- (a) In the case of an employee – (i) One member from amongst the members of the Management to be nominated by the Management, or by the President of the Management if so authorised by the Management, whose name shall be communicated to the Chief Executive Officer within 15 days from the date of decision of the Management. (ii) one member to be nominated by the employee from amongst the employees of any private school; (iii) One member chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred; (b) In the case of the Head referred to Sub-rule (1)- (i) one member who shall be the President of the Management; (ii) one member to be nominated by the Head from amongst the employees of any private school; (iii) one member chosen by the President from the panel of Head Masters on whom State /National Award has been conferred.] 11. In the light of Rule 33(1), the management is first required to decide whether to hold an enquiry and also whether to place the employee under suspension after obtaining permission from the concerned Education Department. 12. The grievance of the petitioner is that he received the show-cause notice dated 14-12-2001 on 19-01-2002. This aspect has been admitted by the respondent – Management as has been recorded here-in-above. It is also an admitted position that the petitioner submitted his reply dated 22-01-2002 to the show-cause notice. The communication dated 06-01-2002 issued to the petitioner by the management indicates that the management decided to initiate an enquiry on the presumption that the petitioner may have accepted the charges levelled upon him. 13. The fact that the respondent has admitted that the petitioner received, the show-cause notice on 19-01-2002, clearly indicates that it did not have any proof on 06-01-2002 to suggest that the petitioner was served with the show-cause notice dated 14-12-2001 so as to arrive at a conclusion that the petitioner appeared to have admitted the charges levelled upon him. As such, in my view, the respondent initiated the enquiry without considering the reply of the petitioner and has therefore violated Rule 33 & 36. B] Whether the enquiry committee rightly proceeded with the enquiry without the nominee of the petitioner? 14. It is not in dispute that the petitioner had nominated his nominee. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. It is also not in dispute that the petitioner intimated to the enquiry committee in writing on 23-03-2002 that his nominee Shri D.D. Gulbhile had declined to continue as a member of the enquiry committee and, therefore, prayed for eight days time so as to nominate another person as his nominee on the committee. 15. During the course of the submissions of the learned Advocate for the respondent, I had specifically drawn his attention to the said application dated 23-03-2002 and invited his explanation on the said aspect. His submissions are that the enquiry committee is not obliged to entertain such a request from the charge sheeted employee. He has to ensure that his nominee appointed on the committee performed his duties of being a part of the enquiry committee. It was, therefore, submitted that neither the committee can be blamed, nor was the committee obliged to adjourn the enquiry. 16. I am unable to accept the contentions of the respondent. The petitioner had only prayed for eight days time so as to nominate another person in place of his earlier nominee who had backed out from the enquiry proceedings. I am also unable to accept the contention of the respondent that by granting eight days time to the petitioner, it would have unduly delayed the enquiry. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. I cannot accept the contention of the respondent that the petitioner will have to suffer the consequences of his nominee's refusal to participate in the enquiry. 17. Rule 36 (3) to 36(6) of the 1981 Rules read as under :- 36. Inquiry Committee : [(3) The Chief Executive Officer or, as the case may be, the President shall communicate the names of members nominated under sub-rule (2) by registered post acknowledgement due to the employee or the Head referred to in sub-rule (1), as the case may be, directing him to nominate a person on his behalf on the proposed Inquiry Committee and to forward the name along with the written consent of the person so nominated to the Chief Executive Officer or to the President, as the case may be, within fifteen days of the receipt of the communication to that effect.] (4) If the employee or the Head, as the case may be, communicates the name of the person nominated by him the Inquiry Committee of three members shall be deemed to have been constituted on the date of receipt of such communication by the Chief Executive Officer or the President, as the case may be. If the employee or such Head fails to communicate the name of his nominee within the stipulated period, the inquiry Committee shall be deemed to have been constituted on expiry of the stipulated period consisting of only two members as, provided in sub-rule (2). [(5) The Convener of the respective Inquiry Committee shall be the nominee of the President, or as the case may be, the President who shall initiate action pertaining to the conduct of the Inquiry Committee and shall maintain all the relevant record of the inquiry.]