JUDGMENT : 1. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties and as per the directions of the Hon'ble Apex Court. Heard Mr. A. Z. Jibhkate, Advocate for petitioner, Mr. B. H. Shambharkar, Advocate for respondent nos.1 and 2, Mr. A. D. Sonak, A.G.P. for non applicant no. 3, Mr. A. D. Mohgaonkar, Advocate for respondent no.5 and Mr. V. N. Patre, Advocate for respondent no.6. Presence of the respondent no.4 is not necessary for deciding this writ petition since the respondent no.4 is Presiding Officer, School Tribunal, Nagpur. 2. The petitioner received a show cause notice dated 24.03.2003 from the respondent no.2Head Mistress, Swami Vivekanand High School, Waddhamana, Tq. Hingna, Dist. Nagpur. Certain acts of misconduct were alleged against the petitioner in the said show cause notice and explanation was sought from the petitioner. On receipt of it, the petitioner denied the allegations and furnished his explanation on 28.03.2003 to the show cause notice. 3. The respondent no.1 which runs the school, convened a meeting dated 04.04.2003 of its managing committee and in that it was decided, after considering the reply submitted by the petitioner, to hold and conduct an inquiry in respect of the acts of misconduct alleged against him. In the said meeting, it was decided to appoint one Mr. N. N. Jaipurkar as Convenor of the inquiry committee and also Eknath Tukaramji Pise who was, at the relevant time, President of the respondent no.1-Trust as Chief Executive Officer (CEO) of the Committee. 4. By registered post, chargesheet along with statement of accusations were served upon the petitioner. In all 17 charges were levelled against the petitioner. Suffice it to state, from perusal of the statement of accusations, the charges were quite serious in nature. The petitioner submitted his reply to the chargesheet by addressing the same to the Chief Executive Officer. 5. It is also not in dispute that the Three Member Committee was constituted to hold and conduct the departmental inquiry against the petitioner for the charges levelled against him. The committee consisted of (i) Mr. N. N. Jaipurkar, as the Convenor and nominee of the management; (ii) Mr. Kharpate, as the State Awardee Teacher, nominated by the Chief Executive Officer and; (iii) Mr. Keshav Khushalji Dahake, a nominee of the petitioner. Various meetings were held by the Committee. The committee consisted of (i) Mr. N. N. Jaipurkar, as the Convenor and nominee of the management; (ii) Mr. Kharpate, as the State Awardee Teacher, nominated by the Chief Executive Officer and; (iii) Mr. Keshav Khushalji Dahake, a nominee of the petitioner. Various meetings were held by the Committee. Thereafter, two separate inquiry reports were submitted by the inquiry committee. The report of convenor Mr. Jaipurkar and the State Awardee Teacher Mr. Kharpate recorded a finding of guilt in their report dated 20.03.2006 against the petitioner by holding that the Management had proved all 17 charges whereas the report submitted by the nominee of the petitioner Mr. Dahake exonerated the petitioner from all the 17 charges. 6. The Management in its wisdom thought it fit to accept the inquiry report holding the petitioner as guilty and consequently on 01.02.2010, an order of termination was issued under the signature of the President of the respondent no.1trust thereby it was informed to the petitioner that the services of the petitioner as Assistant teacher in Swami Vivekanand High School are terminated w.e.f. 01.02.2010 itself and he was also relieved from his duties. 7. Feeling aggrieved by the said order of termination, a statutory appeal as contemplated under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the “Act” for the sake of brevity) was filed before the respondent no.4Presiding Officer of the School Tribunal, Nagpur. The said appeal was registered as Appeal No. STN 10/2010. The parties in this writ petition, except the respondent no.4, were the parties before the School Tribunal in the appeal. The parties to the appeal advanced their oral submissions. In addition to the oral submissions, the petitioner also filed his written submission. The learned Presiding Officer, School Tribunal vide his judgment dated 30.01.2015 dismissed the appeal. 8. Dismissal of the appeal filed on behalf of the petitioner gave cause for him to approach before this Court and accordingly the present writ petition was filed on 18.03.2015. During the pendency of the writ petition, the respondent no.6 Namdeo Gangadhar Nagose filed an application for intervention. On 24.11.2016, the application filed by Mr. Namdeo was allowed and he was permitted to intervene in the writ petition and accordingly he was joined as the respondent no.6. 9. During the pendency of the writ petition, the respondent no.6 Namdeo Gangadhar Nagose filed an application for intervention. On 24.11.2016, the application filed by Mr. Namdeo was allowed and he was permitted to intervene in the writ petition and accordingly he was joined as the respondent no.6. 9. It appears that during the pendency of this writ petition, there was a split in the management i.e. respondent no.1 and perhaps that was the cause for Namdeo Nagose to file an application for intervention. At the stage of admission of this writ petition on 16.03.2017, it was pointed out to the learned Judge of this Court that one faction of the management found that the services of the petitioner are absolutely necessary in the interest of the students. Therefore, in the meeting dated 15.01.2017, one amongst the other resolutions was passed by which it was resolved to reinstate the services of the petitioner and one teacher Ms.Nalini Deshmukh. It was pointed out by Mr. Shambharkar, learned counsel for the respondent nos.1 and 2 that the resolution passed by other group of management is totally illegal. However, it appears that this Court was of the view that the two factions of the management in the trust is not new nor they may have their fights with each other before appropriate authorities. However, for that, interest of students should not be jeopardized. Keeping in mind the same, the learned Judge set aside the order of termination as well as the judgment and order of the learned Judge of the School Tribunal. 10. The respondent no.2 thereafter approached before the Hon'ble Apex Court and questioned the correctness of the order passed by this Court dated 16.03.2017. The appeal was registered before the Hon'ble Apex Court as Civil Appeal No. 9161/2017. The Hon'ble Apex Court, vide judgment dated 17.07.2017 set aside the order passed by the learned Judge of this Court on 16.03.2017 and remanded the matter to this Court for fresh disposal of the writ petition and that is how the writ petition is placed before me for its disposal. 11. The Hon'ble Apex Court in paragraph 29 of the judgment commands that this Court would only decide the main question which is involved in the writ petition as to whether the order passed by the School Tribunal which is impugned by the writ petitioner is legally sustainable or not. 11. The Hon'ble Apex Court in paragraph 29 of the judgment commands that this Court would only decide the main question which is involved in the writ petition as to whether the order passed by the School Tribunal which is impugned by the writ petitioner is legally sustainable or not. Thus, this Court is required to decide the issue as to whether judgment and order of the School Tribunal is justified inasmuch as whether the learned School Tribunal has considered all the issues giving rise to the appeal that was filed before it. 12. Mr. Jibhkate, learned counsel for the petitioner submitted that the report submitted by the inquiry committee is not in conformity with Rule 37 (6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. He also submitted that as per Rule 36 (2), the Management, CEO and the employee concerned are entitled to nominate a person to be the member of the Committee. He submitted that the persons such nominated are not representatives of the respective parties but they are nominated to judge the respective cause before them. He submitted that in the present case, the State Awardee teacher Mr.Kharpate who was nominated by the Chief Executive Officer has assumed the role of prosecutor to himself. He then submitted that when the management witness was examined during the course of inquiry proceedings, he used to lead the question to him and used to solicit answers from him and when the witness of the delinquent namely; the petitioner was before the inquiry committee, he used to be cross-examined by Mr. Kharpate. Therefore, in his submission, the inquiry was vitiated. He also submitted that at the threshold, he raised an objection about the same before the inquiry committee. However, his objections were not decided. Not only that, he submitted that even before the School Tribunal, he raised a specific ground in that behalf and he invited my attention to ground no.3 of the memo of appeal which is at page no.139 and 140 of the compilation of this writ petition. He also invited my attention that apart from the fact that he orally made his submission in that behalf before the School Tribunal even in his written notes of arguments, the said was agitated. He also invited my attention that apart from the fact that he orally made his submission in that behalf before the School Tribunal even in his written notes of arguments, the said was agitated. However, the learned Judge, School Tribunal has not decided the said issue in detail by recording cursory observations that the petitioner was unable to point out what was the prejudice caused to him. 13. He submitted that since two different reports were filed and there was no deliberation amongst three members of the inquiry committee in his submission, in view of the law laid down by the Hon'ble Apex Court in Vidya Vikas Manda and anr. .vs. Education Officer and anr.; reported in 2007 (3) Mh. L. J. 801, and view taken by learned single Judge of this Court in Ramdas s/o Tejram Bhoyar .vs. Education Officer (Secondary), Zilla Parishad, Nagpur and Ors.; reported in 2015 (5) Mh.L.J. 197 the report submitted holding the petitioner guilty cannot be accepted. It is further submitted that the petition is required to be allowed and the order of termination is required to be set aside. 14. Per contra, Mr. Shambharkar, the learned counsel for the respondent nos.1 and 2 would submit that though Mr.Kharpate has put lead questions to the witnesses of the management and cross-examined the petitioner's witness, that by itself is not sufficient to discard the entire exercise done by the inquiry committee. He placed reliance on the judgment of the Single Judge of this Court in Sukhdeo Vishwanath Garaje .vs. M/s. Food Corporation of India & Ors., reported in 1989 Mh.L.J. 236, to submit that the detailed procedure of recording the evidence need not be strictly followed in domestic inquiry. He submits that in this case, the learned Judge of this Court has ruled that a witness can directly depose before the inquiry officer, which does not violative of principles of natural justice. Alternatively, he submitted that if this Court is of the view that the inquiry as conducted against the petitioner is found to be violative of principles of natural justice and/or there is a breach of mandate of Rule 37 (2), in that behalf the management be permitted to hold the fresh inquiry against the petitioner. 15. Mr. Patre has supported the cause of the petitioner and he submitted that he is adopting the submissions of the petitioner. 16. Rightly so, Mr. 15. Mr. Patre has supported the cause of the petitioner and he submitted that he is adopting the submissions of the petitioner. 16. Rightly so, Mr. A. D. Sonak, learned A.G.P. submitted that the Education Officer is having very little role insofar as conducting the inquiry against the petitioner. However, he submitted that it was the duty of the management to hold and conduct the inquiry, in accordance with law by keeping the principles of natural justice in mind. 17. Mr. Mohgaonkar, learned counsel for the respondent no.5, submitted that the respondent no.5 is unnecessarily entangled and joined as party-respondent in this petition. He submitted that the petitioner was appointed in the year 1993 in the Open category whereas though the respondent no.5 is appointed after termination of the petitioner, he was appointed in a post reserved for the Scheduled Tribes and accordingly the Education Officer has given approval to that effect. Therefore, he submitted that in fact he was joined unnecessarily in the petition. 18. Mr. Kharpate was nominated by the CEO since under Rule 36 (2) (a) (iii), the Chief Executive Officer has to choose one member of the inquiry committee from the panel of teachers on whom State/National award has been conferred. Since, Mr.Kharpate was an awardee of the State, he was nominated as one of the member of the inquiry committee along with the Convener who was nominated by the management and Mr.Dahake nominated by the petitioner. 19. In my view, the constitution of the committee thus is in the nature of “Panel of Arbitrators”. The inquiry committee is required to watch the procedure conducted before it. Watching proceeding does not mean that the members should be the mute spectators. It is also clear that the strict rules of the Evidence Act or the other substantive laws will not be applicable to the proceedings of the inquiry committee. Of course, it is the duty of any of the members to intervene or step in to curtail the unnecessary events that may occur during the course of inquiry. But it is crystal clear to me that when such a member of the committee is conferred to act as a Judge to judge the cause that is being submitted before the committee by the management and the delinquent, he is expected to act impartially to justify his role as a Judge. 20. But it is crystal clear to me that when such a member of the committee is conferred to act as a Judge to judge the cause that is being submitted before the committee by the management and the delinquent, he is expected to act impartially to justify his role as a Judge. 20. The management is not required to prove its case against the delinquent beyond the reasonable doubt but the management is expected to prove its case on the touchstone of preponderance of probabilities. At the same time, the inquiry committee is not expected to deviate itself from observance of the principles of natural justice. 21. Mr. Jibhkate, learned counsel for the petitioner, invited my attention at page nos. 78 and 79 of compilation. These two are the communications given by the petitioner to the convener of the inquiry committee dated 11.10.2005 and 21.01.2006. These two communications clearly show that he took objection in respect of the active participation of Mr. Kharpate, the State Awardee Teacher to the extent that Mr. Kharpate used to suggest and used to extend help to the Head Mistress while giving answers in the cross-examination. Though, the entire copy of evidence is not placed on record, it was made available to him during the course of hearing by the counsel Mr. Jibhkate to point out that all the questions used to be put by Mr. Kharpate. To that extent, Mr.Shambharkar, learned counsel for the respondent nos. 1 and 2 has submitted that since it is part of the record, he is not disputing the same. 22. What is important to note is that the objections were raised by the petitioner and though it was expected from the inquiry committee to decide the same, the same were never decided. Even the said aspect is not denied or disputed by Mr. Shambharkar, learned counsel for the respondent nos.1 and 2. In my view, Mr. Kharpate though was expected to assume role of a Judge, he has actively participated in the inquiry proceeding as if he is the Presenting Officer of the Management. That, in my view, is clearly in breach of the principles of natural justice. 23. Further, the petitioner has raised a specific ground before the School Tribunal not only in the memo of appeal but orally also and in addition to that even the said was noted in his written notes of arguments. That, in my view, is clearly in breach of the principles of natural justice. 23. Further, the petitioner has raised a specific ground before the School Tribunal not only in the memo of appeal but orally also and in addition to that even the said was noted in his written notes of arguments. However, the learned Judge of the School Tribunal has cursorily decided the said issue that the petitioner has not established any prejudice by the reason of appointment of Mr.Kharpate as a member of the inquiry committee and since he has participated in the inquiry proceeding, he could not be permitted to raise such a contention. 24. In my view, this particular finding is perverse in nature inasmuch as the prejudice was caused to the petitioner at the stage of recording of the evidence itself. The person who was supposed to judge a cause has assumed the role of a Presenting Officer, in my view, there cannot be a better example of prejudice. 25. In paragraph 8 of Vidya Vikas Manda and anr., cited supra, the Hon'ble Apex Court has held as under: “.....In our opinion, the report submitted by individual members is also not in accordance with the Rules. When the Committee of three members are appointed to inquiry into a particular matter, all the three should submit their combined report whether consenting or otherwise. Since the report is not in accordance with the mandatory provisions, the Tribunal and the learned Single Judge and also the Division Bench of the High Court have committed a serious error in accepting the said report and acted on it and thereby ordering the reinstatement with backwages.” In Ramdas s/o Tejram Bhoyar cited supra, this Court in paragraph 12 held as under: “12. The issue as to whether the members of the enquiry committee are required to submit combined enquiry report as per the provisions of Rule 37(6) of the Rules of 1981 is concluded by the judgment of the Hon'ble Supreme Court given in the case of Vidya Vikas Mandal & Anr. V/s. The Education Officer & Anr. (cited supra). It is undisputed that two members of the enquiry committee had submitted their report on 20th March, 2007 and the third member of the enquiry committee has submitted the report on 22nd March, 2007. V/s. The Education Officer & Anr. (cited supra). It is undisputed that two members of the enquiry committee had submitted their report on 20th March, 2007 and the third member of the enquiry committee has submitted the report on 22nd March, 2007. The learned advocate for the respondent/Management has tried to distinguish the above referred judgment given by the Hon'ble Supreme Court by submitting that the there had been deliberations by the members of the enquiry committee before submitting the two separate enquiry reports and, therefore, it cannot be said that the provisions of Rule 37(6) of the Rules of 1981 are not complied. The learned advocate for the respondent/ Management relied on the judgment given in Writ Petition No.1339/2000, however, the submissions made on behalf of the respondent/Management cannot be accepted as there is nothing on the record to show that all the three members of the enquiry committee have held deliberations before submitting their separate reports. In the judgment given in Writ Petition No.1339/2010, though there were two separate reports both the reports were of the same date i.e. 18th February, 2009 and the record of the enquiry committee showed that there were deliberations amongst the three members of the enquiry committee and after discussions, two members of the enquiry committee had prepared separate report and the third member of the enquiry committee had prepared separate report but on the same date. The conclusions arrived at in Writ Petition No.1339/2010 are in view of the facts of that case. In the present case, as observed above, there is nothing on the record to show that the three members of the enquiry committee have deliberated before submitting different reports and on different dates. In the facts of the present case the judgment given by the Hon'ble Supreme Court in the case of Gopal Damduji Shelwatkar V/s. Gramin Uddhar Society, Kamptee and another (cited supra) is applicable. Therefore, it has to be held that the decision of the Management to terminate the services of the petitioner, relying on the report submitted by two members of the enquiry committee is unsustainable in law.” In that behalf, Mr. Shambharkar, learned counsel for the respondent nos.1 and 2 has submitted that the report of the Convener and the State Awardee Teacher is dated 20.03.2006 whereas the report of Mr. Shambharkar, learned counsel for the respondent nos.1 and 2 has submitted that the report of the Convener and the State Awardee Teacher is dated 20.03.2006 whereas the report of Mr. Dahake is also dated 20.03.2006 and therefore he tried to distinguish the case of Ramdas Tejram Bhoyar on facts. 26. No doubt true, both the reports are dated 20.03.2006. What is expected is to point out that before submitting different reports, there were deliberations amongst three members. It is always open for every member to differ from the reasoning or finding given by the other one. However, as ruled in Vidya Vikas Manda's case, the report has to be joint one and it should be the outcome of deliberations between the members of the Committee. In my view, the members of the inquiry committee has failed to do the same. 27. Further, it was obligatory on the part of the School Tribunal to formulate a point as to whether the inquiry conducted against the petitioner was legal and was in accordance with law. The said point was not formulated. The only point that was formulated by the School Tribunal was that whether the order of termination dated 01.02.2010 is illegal and contrary to law. The foundation for issuance of the order of termination is the report of the inquiry committee, which was submitted after the full fledged inquiry. Therefore, it was the duty of the management to prove before the School Tribunal to formulate a point in that behalf and give its verdict. 28. It was suggested before me by Mr. Mohgaonkar, learned counsel for the respondent no.5, that the matter can be remanded to the School Tribunal for its decision afresh. Normally, there would not have been any hesitation to accept the said plea, in the backdrop of the fact that the learned Judge of the School Tribunal has failed to formulate the point about the validity of the inquiry proceedings and not deciding the plea raised by the petitioner about the same in detail. Normally, there would not have been any hesitation to accept the said plea, in the backdrop of the fact that the learned Judge of the School Tribunal has failed to formulate the point about the validity of the inquiry proceedings and not deciding the plea raised by the petitioner about the same in detail. However, once it is noticed by this Court that the inquiry itself was vitiated, right from its early stage, it would be a futile exercise to remand the matter to the School Tribunal with a direction to record a finding as to whether the inquiry was in accordance with law or not and then again get an order from the School Tribunal directing the management to hold fresh inquiry. Therefore, I am unable to persuade myself to the submission made by Mr.Mohgaonkar in that behalf. 29. As an officer of the Court, Mr. Mohgaonkar, rightly invited my attention to the reported case of the Hon'ble Apex Court in The Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. vs. The Management and others; reported in AIR 1973 SC 1227 . In the said reported case, the Hon'ble Apex Court has ruled that the case of defective inquiry stands on the same footing as no inquiry. Thus, it is crystal clear that the inquiry which was defective in nature right from the beginning, it will have to record a finding that the order of termination was not preceded by holding any inquiry. 30. Mr. Jibhkate, learned counsel for the petitioner, submitted that after setting aside the order of termination, the matter should rest here only. However, I am afraid that such a submission of Mr. Jibhkate can be entertained. 31. It is the trite law that once it is noticed by the Court that the inquiry held and conducted against the delinquent is required to be set aside for the reason that the inquiry was vitiated, that does not debar or that does not foreclose the option of the management to conduct the inquiry de novo or from the stage where it was noticed that it is vitiated. Therefore, on this principal, Mr. Shambharkar, learned counsel for the respondent nos. 1 and 2 is right in making his submission that; option is still open for the management to hold an inquiry. 32. The conspectus of aforesaid discussion leads me to pass the following order. Therefore, on this principal, Mr. Shambharkar, learned counsel for the respondent nos. 1 and 2 is right in making his submission that; option is still open for the management to hold an inquiry. 32. The conspectus of aforesaid discussion leads me to pass the following order. ORDER (i) Writ Petition No. 1958/2015 is allowed. (ii) The inquiry conducted against the petitioner is held to be vitiated from the stage of evidence. Consequently, the order of termination dated 01.02.2010 is hereby set aside. (iii) The judgment and order of the School Tribunal in Appeal No. STN 10/2010 dated 30.01.2015 is hereby quashed and set aside. (iv) The management is permitted to hold a fresh inquiry from the stage when it is noticed that it is vitiated, if they choose to do so, by placing the petitioner under suspension and it shall be the obligation of the management to pay the subsistence allowance, as admissible to him. Such a decision, the management shall take not later than one month from today. (v) If the petitioner is kept under suspension then it will be the duty of management to hold and complete the inquiry, in accordance with law, within a period of seven months from today, failing which the order of suspension shall cease to exist. (vi) Insofar as backwages are concerned, the said issue will be decided by the management, in accordance with law. Rule is made absolute in the above terms. No order as to costs.