DRAFT

Date:_________
To
Ms. Daksha Rajesh Vyas
(Address)
Madam
We are shocked and surprised to read the various false and
baseless allegations made by you in your letter dated 21.09.2007
addressed to the Secretary of KCN Special School.
On 17.09.2007, I came to the Staff Room at around 1.00 p.m.
on being called by the President Mrs. Sarlaben Mehta and the other
Committee Members who had complained to me that you had
misbehaved with the President in a very rude and unbecoming
manner on 16.09.2007, without any rhyme or reason.
When I came in the Staff Room on 17.09.2007 and was
interacting with the President and the other Committee Members
and the Teachers, you literally barged into the room uninvited and
unannounced and without any provocation whatsoever, started
shouting and screaming at the undersigned by yelling
_____________________________________. Thereafter, you stormed out
of the Staff Room after threatening us.
Your various allegations mentioned in the letter under
reference are totally false and baseless. It appears that you have
chosen to level totally fabricated allegations solely to cover up your
earlier misbehaviour on 16.09.2007 and 17.09.2007.
We take strong objection to such acts of yours and reserve our
right to initiate appropriate action in your matter.
Mrs. Sarlaben Divetia

25.05.2007
M.P Shah English High School
High School Section,
Sarojini Road, Vile Parle (W),
Mumbai-400 056
Madam

During the conference held by the Trustees of the School at

my Chambers on 22.05.2007, the following query was put to me:

Query:

What

are

the

legal

options

open

to

the

Trustees/Management in the matter of Mr. V.C. Solanki and Mr.

L.K. Ashiwal?

Based on the instructions received from Mrs. Padman,

Principal, I give herein below my considered legal opinion as under:

The instructions given to me are as under:

Mr. V.C. Solanki was appointed vide the letter of the School
dated 24.05.2001 as a Full-Time Physical Education Tracher w.e.f.
13.06.2001, while Mr. L.K. Ashiwal was appointed vide the letter of
the School dated 11.06.2002 as a Full Time Drawing and Craft
Teacher w.e.f. 13.06.2002.

The School had proposed to retrench both the said persons on

the ground of reduced workload w.e.f. 30.09.2006 vide separate
letters of retrenchment both dated 29.06.2006 issued to them. The
said persons thereafter approached the Honble School Tribunal
under the MEPS Act, 1977 (Herein after referred to as the Act) by
filing two separate Appeals i.e., Appeal No. Mum. 23 of 2006 (Mr.
V.C. Solanki) and Appeal No. Mum. 24 of 2006 (Mr. L. K. Ashiwal)
and sought a stay on the said proposed retrenchment.

In the said Appeals, the School had raised a technical

objection as regards the maintainability of the said Appeals by the
said persons on the ground of the said Appeals being premature,
which contention was not accepted by the Honble School Tribunal
and the Honble Tribunal was pleased to grant a stay to the Order of
retrenchment vide the Order dated 28.09.2006 and the matter
thereafter is required to proceed on merits. In the meantime, the
School addressed letters to the said Teachers both dated 29.09.2006
and conveyed to the said teachers the decision of the School not to

give effect to the termination Orders dated 29.06.2006 till the

arguments on the stay application is heard and decided by the
Honble Tribunal. The said Teachers were advised to report on duty
till the final decision of the Tribunal on the Stay/Interim Relief
Application.

In the course of the proceedings before the Honble Tribunal,

the School offered to give part-time appointment to the said
Teachers and the Honble Tribunal was pleased to enquire whether
the said offer could be given in writing to the said Teachers.
Accordingly, the School, vide letters both dated 09.11.2006 offered
to appoint the said Teachers as Part-time Teachers in the Secondary
Section of the School, on which offer the said Teachers remained
silent.

I am instructed that Mr. V.C. Solanki is remaining absent

unauthorizedly without intimation and without permission and /or
approval from 15.11.2006 till 26.11.2006 and thereafter from
29.11.2006 till date and Mr. L.K. Ashiwal is also remaining absent
unauthorizedly without intimation and without permission and /or
approval from 15.11.2006 till 26.11.2006 and thereafter from
29.11.2006 till date. I am further instructed that several letters have
been written to them to report on duty, but the said persons have
neither replied to the said letters of the School and nor have they
reported on duty. I am also instructed that both the said persons
showed up without any intimation only for a day on 01.05.2007
during the School celebrations and without permission signed the
muster for the day as well as for 03.05.2007 and that the said
Teachers later scored out their signatures for 03.05.2007. I am
further instructed that the said Teachers are thereafter again
remaining absent from 02.05.2007 till date unauthorizedly and
without permission. I may inform you that the said Teachers will not

be entitled to any wages for the period of their unauthorized

absenteeism.
As regards the action of retrenchment, I had already informed
the Management during the course of conferences with me right at
the initial stage of the matter that the said action of the
Management of retrenchment vide letters dated 29.06.2006 is nonest for not following the Rules of the Act.

The said action of retrenchment, per se was required to have

been taken by following the provisions of Retrenchment as are
mentioned in Rule 26 (1) to (9) of the Maharashtra Employees of
Private Schools Rules, 1981 (Herein after referred to as the Rules)
as under:

As per Rule 26(2) (ii), for retrenchment, prior approval of the

Education Officer is required to be taken and the principle of
seniority is to be followed, i.e., the junior-most employee is to be
retrenched and in the event of the said principle not being followed,
the reasons for deviation therefrom are to be mentioned. I have been
instructed that the prior approval of the Education Officer was not
sought at the time of issuing the proposed notice of retrenchment to
the said Teachers and hence, to that extent, the action of the
Management is unsustainable in Law. I have to also inform you that
the said persons in the said Appeals have claimed to belong to
Backward Castes and hence, the provisions of Rule 27(e) will also
be applicable, which puts a mandate on the Management as under:

When any retrenchment is to be effected, members of

Backward Classes already in service shall not be retrenched
though liable to retrenchment according to their seniority, if
their strength in the School does not exceed the percentage of
reservation prescribed in sub-rule (7) of Rule 9. in their place,
an equal number of non-backward class members of the Staff

shall be retrenched subject, however to the condition that, as

between

the

permanent

and

temporary

employee,

the

temporary employee shall be retrenched irrespective of the fact

that he belongs to the backward class.

In my considered opinion, the Management will have a very

hard

time

in

effecting

Retrenchment

of

the

said

Teachers

considering the requirements of Rule 27 (e) even if the said Teachers

would otherwise be justified in their act of proposing retrenchment
of the teachers on the ground of their being surplus due to reduced
workload.

As regards the unauthorized absenteeism of the said persons

and their unsatisfactory work, the Management will be within its
legal right to take a disciplinary action against the said Teachers by
following the due process of conducting a domestic enquiry as laid
down in Rule 36 and 37 of the Rules, in as much as the said act of
unauthorized absenteeism will amount to misconduct and willful
negligence of duty as well as incompetence. The procedure of
conducting a domestic enquiry is as follows:

1)

Chief Executive Officer of the Management shall be

authorized

by the Management

to issue under his

signature a statement of allegations to the Employee and

seek a written explanation to the said allegations within a
period of one week from the date of receipt thereof .
2)

If the Chief Executive Officer finds that the reply of the

Employee

to

satisfactory,

the
he

Statement

shall

place

of
the

allegations
same

is

not

before

the

Management within 15 days from the date of receipt of the

reply.

3)

The Management shall decide within 15 days whether an

inquiry is to be conducted against the Employee and if so,
an inquiry Committee has to be constituted by the
Management.

4)

The Constitution of the Committee shall be as follows:

a) one member from amongst the members of the
Management nominated by the Management or by The
President if so authorized by the Management, whose
name shall be communicated to the Chief Executive
Officer within 15 days from the date of decision by the
Management;
b) one member to be nominated by the Employee amongst
the employees of any Private School;
c) one member chosen by the Chief Executive Officer from
the panel of Employees on whom State/National Award
has been conferred.

2)

The Chief Executive Officer shall then communicate the

names of the members so nominated to the Employee by
RPAD and shall direct the Employee to nominate a person
on his behalf and forward the same along with the written
consent of the person so nominated to the Chief Executive
Officer, within a period of 15 days from the date of receipt
of the communication.

3)

If the Employee nominates his representative within the

period stipulated, the Inquiry Committee shall be deemed
to have been constituted. If the Employee does not do so,
within the stipulated period, then the Inquiry Committee
shall be deemed to have been constituted with only two
members as mentioned above.

4)

The Convenor of the Inquiry Committee shall be the

nominee of the President.

5)

The meetings of the Inquiry Committee shall be held in the

school

premises

during

normal

school

hours

or

immediately thereafter, if the Employee agrees and even

during vacation.

6)

The Management shall prepare a Charge-Sheet containing

specific charges and shall hand over the same together
with the Statement of allegations and the explanation of
the Employee (if any) to the Convenor of the Inquiry
Committee and also forward copies thereof to the Employee
by RPAD within 7 days from the date of constitution of the
Inquiry Committee.

7)

Within 10 days from the receipt of copies of charge-sheet

and the statement of allegations by the Employee, (i)

If the Employee wants to give any written

explanation to the Charge Sheet, the same
shall be submitted to the Convenor in person
or by RPAD

(ii)

If the Management or the Employee want to

examine witnesses,

the names of the said

witnesses shall be communicated in writing

to the Convenor of the Committee;
(iii)

If the Management wants to rely upon any

documents, the true copies of the same shall
be provided to the Employee, and if the
Employee wants to rely upon documents, the
true copies of the same shall be provided to
the Management.

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8)

Within 3 days after the expiry of the above-mentioned

period of 10 days, the Inquiry Committee shall meet to
proceed with the inquiry and give 10 days notice by RPAD
to

the

Management

and

the

Employee,

to

produce

evidence, and to examine witness if any.

9)

The Inquiry committee shall provide every reasonable

opportunity to the Employee to defend himself. The
Management as well as the Employee have the right to lead
evidence and to cross-examine each others witnesses.
Sufficient opportunities shall be given to examine all
witnesses notified by both parties.

10)

All the proceedings of the Inquiry Committee shall be

recorded and the same along with the statement of
witnesses shall be endorsed by both parties. Refusal to
endorse the same by either of the parties shall be recorded
by the Convenor.

11)

The Inquiry shall be ordinarily completed within a period of

120 days from the date of the 1st meeting of the Inquiry
Committee or from the date of suspension of the employee,
which ever is earlier. In case of the Inquiry prolonging
beyond 120 days for certain reasons, the period of Inquiry
may be extended with the prior approval of the Deputy
Director.

The Employee shall cease to be in suspension

after the period of 120 days and shall be deemed to have

rejoined duties, without prejudice to the continuance of the
Inquiry.

12)

The Management and the Head shall be responsible to

ensure the presence of their witnesses. IF the Inquiry
Committee is convinced about the absence of either of the

11

parties or any of the members of the Inquiry Committee on

any valid ground, the Inquiry Committee shall adjourn
that particular meeting of the Committee. The meeting so
adjourned shall be conducted even in the absence of the
person so concerned if he fails to remain present for the
said adjourned meeting.

13)

The Convenor shall forward to the Employee a summary of

the proceedings and copies of statements of witnesses (if
any) by RPAD within 4 days of completion of the above
steps and allow him a time of 7 days to offer his further
explanations, if any.

14)

The Employee shall submit his further explanation to the

Convenor within a period of 7 days from the date of receipt
of the summary of proceedings, either personally or by
RPAD.

15)

Upon receipt

of such further explanation or if no

explanation is offered within the above-mentioned period

of 7 days, the Inquiry Committee shall complete the
Inquiry and communicate its findings on the Charges
leveled against the Employee to the Management for
specific action to be taken against the Head, within 10
days after the date fixed for receipt of further explanation.
The Committee shall also forward a copy of the findings to
the Head Mster by RPAD. A copy of the said findings shall
be forwarded by the Committee to the Education Officer or
the Deputy Director.

16)

Thereafter, the decision of the Inquiry Committee shall be

implemented by the Management, which shall issue

12

necessary orders within 7 days from the date of receipt of

the decision of the Inquiry Committee by RPAD.

17)

A copy of the Order of the Management shall be endorsed

by the management to the Education Officer or the Deputy
Director.

In the course of the conference, I am informed that the said

Teachers are not reporting on duty possible for the reason that they
have taken up alternative employment. The Management should put
in efforts to verify about the veracity of this belief and if the same is
true, then the Management would be justified in dispensing with the
services of the said Teachers on the grounds of misconduct, moral
turpitude, willful and persistent negligence of duty as well as
incompetence, by following the procedure of disciplinary action as
mentioned above.

In my considered opinion, the disciplinary action is the only

available legal option available to the Management for terminating
the services of the said Teachers.
Yours faithfully,

Mukund S. Jambaulikar
ADVOCATE