Ajit B. Kadethankar, J.

1. Subject-matter:

Here we consider,

“Whether Head master of a private school has power to pass a penalty order on a School employee, under the provisions of the 2 and Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, in the absence of any resolution/decision of the School Management?”

Explained: ‘Power to pass penalty order’ and ‘power to issue penalty order’.

2. Rule. Rule is made returnable forthwith. With the consent of learned counsel for the parties, we have the Writ Petition heard for final disposal.

3. Heard Mr. Bandiwadekar, learned Senior advocate for the petitioner and Mr. V. M. Mali, learned AGP for the respondents-State.

4. The petitioner has put forth following prayers in the writ petition :

                   “a]Rule Nisi be issued and records and proceedings be called for.

                   b] By a suitable writ, order or direction, this Hon'ble Court may be pleased to quash and set aside the impugned order dated 29.5.2020 [EXHIBIT-N] passed by the Respondent No. 6, imposing upon the Petitioner the minor penalty of stoppage of annual increment payable to the Petitioner in July 2020, and accordingly the said annual increment may be directed to be released with consequential payment of amount to the Petitioner, with all consequential benefits.

                   c] By a suitable writ, order or direction, this Hon'ble Court may be pleased to quash and set aside the impugned order dated 22.11.2021 [EXHIBIT-S] passed by the Respondent No.2/President of the Complaint Redressal Committee, and accordingly the Appeal dated 15.12.2020 [EXHIBIT-P] filed by the Petitioner, may kindly be allowed and the order of punishment dated 29.5.2020 [EXHIBIT-N] issued by the Respondent No. 6 may kindly be quashed and set aside, with further direction to the Respondent Nos. 2 to 5 to immediately release the withheld annual increment of the Petitioner payable on 1.7.2020, with all consequential benefits.

                   d] Pending the hearing and final disposal of this Writ Petition, the Respondent Nos. 2 to 5 may be directed to release the amount of annual increment of the Petitioner payable on 1.7.2020, with all consequential benefits.

                   e] Cost of this petition be provided for.

                   f] Any other order in the interest of justice and kindness be passed as and when necessary.”

5. Brief Facts:

                   5.1 The petitioner was working as an ‘Assistant Teacher’ in the respondent No.5-School run by the respondent No.4 – Education Institution. He was appointed vide order dated 11th January 2003 and subsequently was confirmed in the school and approval was duly accorded by the Competent Authority. These are undisputed facts.

                   5.2 In the meantime, some differences were cropped between the Petitioner and the then Head Master, and the Head Master earned personal grudge against Him. The bittered relations resulted into the impugned order dated 29-05-2020. The respondent No. 5- Head Master ‘passed’ the impugned order on 29th May 2020, thereby permanently withholding an annual increment for July-2020 under Rule 30 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ( for the sake of brevity referred as ‘1981 Rules’ ).

                   5.3 The Petitioner challenged the impugned order to the appellate authority under the Proviso to the Rule 29 of the 1981 Rules. The Appellate authority partly allowed the appeal and reduced the punishment to the extent of withholding the increment for One year. Petitioner’s attempt to seek review too didn’t succeed.

                   5.4 As against this, the Petitioner has preferred this Writ Petition challenging the jurisdiction of the Head Master to impose any penalty at his own in the absence of any directions and resolution of the School Management.

6. Submissions :

                   6.1 Mr. Bandiwadekar would strenuously urge that in any case the Rules of 1981 and the M.E.P.S. Act 1977 do not provide any authority to Head Master to pass any order under the Rules of 1981 to impose any penalty as stated, without there being any resolution of the School Management. He would submit that the authority to impose the penalty under the 1981 Rules rests only with the Management, and the Head Master is empowered only to implement the order imposed by the Management.

                   6.2 He would further submit that documents placed before the Court clearly show that Head Master at his own has passed this impugned order of penalty on the petitioner.

                   6.3 Then our attention was invited to the reply of affidavit filed by the Management, which is on record. Mr. Bandiwadekar would invite refer to page No.99 Exhibit – R of the petition. This is a letter addressed by the Educational Institute to the Grievance Redressal Committee/ appellate authority, wherein the Institute has supported the case of the petitioner and has contended before the authority that the Head Master has no authority to pass such order nor he has followed the procedure in accordance with Rule 32 of the Rules of 1981. The relevant portion of the contention/submission by the Institution is reproduced as follows:

                  

                   6.4 Ld. Senior Advocate Mr. Bandiwadekar would further submit that he has alleged mala fides against the respondent No.5 and that out of his personal grudge, the Head master has imposed the penalty against the petitioner. Petitioner’s grievance remained unredressed even after the Appellate Authority partly allowed the appeal. Review of the order passed in the appeal was also turned down.

                   6.5 The Petitioner would conclude his argument with a legal submission that in any case the Head Master was not having any competency to impose the impugned penalty on the petitioner. A supplemental argument is also advanced by Mr. Bandiwadekar that in any case even a minor penalty can not be imposed on any employee of a private School, in the absence of a due departmental enquiry u/r 32 of the 1981 Rules.

7. Mr. Mali, learned Assistant Government Pleader for the respondents-State on questioning, could not point out from the Rules as to which provision authorized the Head Master to pass the impugned order without seeking any instructions from the Management and in the absence of any resolution of the School Management.

                   7.1 Mr. Mali would fairly concede that as per the 1981 Rules, there is a complete procedure for imposing any penalty on any of the employee of a private School. That, unless those rules are complied, no penalty could be imposed on such employee. As such he would request to pass an appropriate order.

8. School Management supports the Petitioner.

9. Consideration:

                   9.1 Heard the petition with the able assistance of the learned advocates for the respective parties.

                   9.2 We have gone through the papers of the writ petition, compilation and the relevant Rules. It is clear from the record that there is no resolution passed by the Management, whereby the Management proposed to initiate any action against the petitioner or even proposed to pass the impugned order against the petitioner.

                   9.3 There is no order/directions from the School Management to the Head Master to pass the impugned order. Management has in fact supported Petitioner’s case.

                   9.4 The record speak that it is the Head Master who has imposed this penalty at his own. On the other hand, it is significant to note that the Management in fact has supported the case of the petitioner. The Management has referred to the Rules and contended before the Competent Appellate Authority that the Head Master was powerless to pass such impugned order in the absence of any resolution or any instructions by the School Management, and that power to issue the penalty order must be a consequent to a resolution of School Management.

                   9.5 It would not be out of place to record the submissions made by Mr. Bandiwadekar, learned Senior Advocate for the Petitioner that the concerned Head Master passed this order just two days prior to his retirement and he is no more in service.

                   9.6 Let’s now look into the relevant provisions about imposing penalties to the employees of private schools under Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act 1977 and Rules thereunder.

                   9.7 Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 defines various punishments and the procedure to impose the punishments. Rule 29 of the 1981 Rules provides the punishments those could be imposed on an employee of a private school. Rule 29 reads thus :

                   29. Penalties.

                   - Without prejudice to the provisions of these rules, any employee guilty of misconduct, moral turpitude, wilful and persistent neglect of duty and incompetence, as specified in rule 28, shall be liable for any of the following penalties, namely : (1)warning, reprimand or censure.

                   (2) withholding of an increment for a period not exceeding one year.

                   (3) recovery from pay or from some other amount as may be due to him of the whole or part of any pecuniary loss caused to the Institution by negligence or breach of orders.

                   (4) reduction in rank.

                   (5) termination of service :

                   Provided that, an employee of a private school aggrieved with decision of imposing a minor penalty as specified in clause (1) of rule 31 may prefer an appeal to the Deputy Director of the region concerned within 45 days from the date of receipt of the order of punishment.

                   9.8 The punishments under the 1981 Rules are classified u/r 31 of the 1981 Rules which speak as under:-

                   31. Classification of penalties.

                   - The penalties shall be classified into minor and major penalties as under :

                   (1) minor penalties :

                   (i)reprimand,

                   (ii)warning,

                   (iii)censure,

                   (iv) withholding of an increment for a period not exceeding one year,

                   (v) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Institution by negligence or breach of orders.

                   (2) major penalties :

                   (i)reduction in rank,

                   (ii)termination of service.

                   9.9 Needless to mention, the impugned punishment of withholding increment is classified as ‘Minor Penalty’ under the Rule 31 of the 1981 Rules.

                   9.10 Rule 32 of the 1981 Rules prescribes procedure for imposing minor penalty. However this provision itself doesn’t specify as to who is competent to impose the said penalty.

                   Thus, it has to be held that the 1981 Rules are code in itself for the purpose of conduct of enquiry against any private School employee and to pass a disciplinary action.

                   9.11 Responsibilities of the Head Master are prescribed at Rule 4 of the 1981 Rules, which reads thus:-

                   4. Responsibilities of a Head.

                   (1) Subject to the provisions of the Act and the rules, the Head as an academic head of the school shall be responsible for -(a)improvement of academic standard of the school; (b)performing assigned teaching work;(c)assisting in planning and conduct of academic programmes such as orientation courses, seminars, in-service and other training programmes organised by agencies such as National Council of Educational Research and Training, the State Institute of Education and other State level institutions; (d)admissions of students and maintenance of discipline in the school;(e)organisation and supervision of the curricular and co-curricular activities and maintenance of school record;(f)observance of the provisions of rules, regulations, the Secondary Schools Code and other orders issued by Government or the Director from time to time in respect of academic matters;(g)supervision and conduct of the examinations including the examinations conducted by the Government, the Maharashtra State Board of Secondary and Higher Secondary Education and the Directorate and the work of internal assessment and such other work pertaining to the examinations as assigned;(h)assessing work of Assistant teachers and other staff and maintenance of service books of the employees of the school;(i)any other work relating to organisation and improvement of the school as may be assigned to him by the Department or the Director from time to time. (2) Subject to the superintendence and control of the Management, the Head as an administrative head of the school be responsible for -(a)maintenance of accounts; (b)management of the school library, laboratories, hostel for students exclusively from the school of which he is the Head;(c)correspondence relating to the administration of the school;(d)observance of the provisions of rules, regulations, the Secondary Schools Code and other orders issued by Government or the Director from time to time and instructions issued by the Management from time to time, in respect of the administration of the school;(e)any other work relating to the administration of the school as may be assigned to him by the Department, Director or the Management from time to time.]

                   9.12 Thus, the Head Master has to act subject to the superintendence and control of the Management. He is held to be the ‘Administrative Head’ of the School. His administration is however under the superintendence and control of the Management.

                   9.13 A Head master himself/herself is an employee of the School Management, although he is administrative head of the school. His jurisdiction is restricted to implementation of the decisions taken by the School Management, so far as disciplinary action is concerned.

                   9.14 A Head Master is defined at Section 2 (9) of the M.E.P.S. Act 1977 which reads as follows:-

                   Section 2 (9)

                   "Head of a school" or "Head" means the person, by whatever name called, in charge of the academic and administrative duties and functions of a school conducted by an y Management and recognised or deemed to be recognised under this Act, and includes a principal, vice-principal, head- master, head-mistress, assistant head-mistress or superintendent thereof.

                   9.15 Lastly, we make profitable reference to the Schedule-I of the 1981 Rules that reads with Rule 22 (1) of the 1981 Rules. This Schedule prescribes duties of the Head Master, the Assistant Head master, the teachers etc.

                   9.16 Clause 2 of the Schedule ‘I’ speaks about Head Master’s duties towards general administrative matters. Clause 2 (h) reads thus:

                   “Clause 2 (h): supervise, control and co-ordinate the work of his assistants, be responsible for their eiciency and discipline and report forthwith to the Chief Executive Officer of the Management, cases, if any, which may come to his notice of misconduct or breach of discipline among his assistants.”

                   9.17 The conjoint reading of the provisions (supra), particularly Clause 2(h) of the Schedule-I of the 1981 Rules clarifies that the Head Master is under obligation to supervise administration of the school. So far as his assistants i.e. the other employees are concerned, he has to report to the Management if he notices or reveals any indiscipline on the part of such employee(s).

                   9.18 It’s the principle of service jurisprudence that the appointing authority is the Disciplinary Authority, unless specifically and is an Assistant Teacher and his appointing authority is the School Management. Under such circumstances, it’s only the School Management who has competency to impose any penalty on the Petitioner, that too, by due process of law. The Head master, even being head of the school and even the penalty is of Minor nature, could not have imposed it on the Petitioner unless the School Management resolves to impose such penalty and authorizes the Head Master to implement the same. For that employer of the employees in the private School is the School Management, not Head master. Head Master is meant only to execute the decisions of the School Management.

                   9.19 A profitable reference can be made to the observations made by Ld. Single Judge of this Court in the case of Pralhad Bonde Vs. Ramkrishna Shikshan Prasarak Mandal, reported at 2011 (3) ALL MR 696. These observations are not binding on the division bench, however certainly they have persuasive value. Relevant observations in Pralhad Bondre’s case (supra) are as follows:-

                   “15. It is no doubt true that an employee is liable to be punished for the act of wilful and persistent negligence of duty, as contemplated by Rule 28(5)(c) of the MEPS Rules. It is also not in dispute that the term "wilful negligence of duty" has been defined in explanation (c)(ii) of sub-rule (5) of Rule 28 of the MEPS Rules to mean persistent absence from duty without previous permission. The petitioner was absent from duty continuously from 3-5-2007 to 24-6-2007 without prior permission. Hence, it could be an act of persistent absence from duty without prior permission. Rule 29 of the MEPS Rules, which deals with "penalties", is relevant and the same is reproduced below:

                   "Penalties: Without prejudice to the provisions of these rules, any employee guilty of misconduct, moral turpitude, wilful and persistent neglect of duty and incompetence, as specified in rule 28, shall be liable for any of the following penalties, namely:

                   (1) warning, reprimand or censure.

                   (2) withholding of an increment for a period not exceeding one year.

                   (3) recovery from pay or from some other amount as may be due to him of the whole or part of any pecuniary loss caused to the Institution by negligence or breach of orders.

                   (4) reduction in rank.

                   (5) termination of service.

                   Provided that, an employee of a private school aggrieved with decision of imposing a minor penalty as specified in clause (1) of rule 31 may prefer an appeal to the Deputy Director of the region concerned within 45 days from the date of receipt of the order of punishment."

                   As per the aforesaid provision, an employee, who is found guilty of wilful and persistent neglect of duty, as specified in Rule 28, shall be liable for any of the penalties specified in Items (1) to (5) of Rule 29 reproduced above. Thus, it is for the Management to choose any of the penalties specified in Items (1) to (5) of Rule 29 for the act of willful and persistent negligence of duty which is proved. The law on the point of selection of penalty for imposition needs to be seen.”

Conclusion:

10. For the reasons recorded above, we have no room for doubt in our minds to hold that,

                   (i) Decision to take any disciplinary action against an employee of a private school, is within the domain only of the Management, which too is required to be backed by due process initiating with resolution to conduct enquiry till the resolution to pass appropriate penalty order after due enquiry;

                   (ii) Power of the Headmaster is confined only to ‘issue’ an order terms is merely a ministerial act; and

                   (iii) Hence, the Head Master is competent only to ‘issue’ penalty order; but not to ‘Pass’ Penalty Order at his own.

Consequently, the impugned punishment order issued by the Head Master suffers fatal jurisdictional error and the impugned punishment order must go. As such the petition needs to be allowed. Hence, we pass the following order :

ORDER

a) Writ Petition stands allowed.

b) The impugned order dated 29th May 2020 passed by the Respondent No. 5-Head Master (page Nos.71 & 72) and so also the order passed by the Grievance Redressal Committee dated 22nd November 2021 (page No.101) stand quashed and set aside. Consequences shall follow.