JUDGMENT R.J. Kochar, J.
1. The petitioners are a society registered under the Societies Registration Act and is also a public Trust registered under the Bombay Public Trust Act, 1950. The petitioner No. 1 society runs a college viz. Shri Chinai College of Commerce and Economics, Andheri (East), Mumbai. The College is affiliated with the University of Bombay getting 100 percent grant.
2. The petitioners are aggrieved by the judgment and order passed by the Presiding Officer, College Tribunal, Mumbai (hereinafter referred to as "the Tribunal") passed on 27-11-1998 in Appeal filed by the respondents. The Tribunal had quashed and set aside the order of termination of the respondents and substituted the same by reinstatement without back wages, as far as the respondent No. 1 is concerned as the other respondent Professor having expired during the pendency of the proceedings there was no question of granting reinstatement. The Tribunal substituted the punishment of dismissal by depriving both the professors of full back wages and by imposing a punishment of withholding of two increments for two years in the time scale.
3. The petitioners as well as the professors are aggrieved by the impugned order of the Tribunal and both of them have approached this Court under Article 226 of the Constitution of India giving challenge to the said order of the Tribunal. The petitioners do not want to give reinstatement to the professor, who is alive and the legal heirs and representatives of the deceased professor as also the professor who is alive want the normal relief of full back wages and quashing of punishment of withholding two increments. I have heard all the three petitions together as they arise from one and the same Judgment and Order of the Tribunal.
4. Both the professors joined the college in 1979 and 1984-85 respectively. Both were Incharge of the National Service Scheme (NSS) introduced by the State Government. The nature of the scheme appears to be that all those students who enrolled themselves as NSS volunteers are required to participate in the programme during the academic year and they are required to complete total of 120 hours of work. If they complete the requisite service they would earn 10 grace marks as per the University Circular. The University gives a grant of Rs. 100/- per student-volunteer. The scheme was introduced and was enforced from 1983 onwards. The University of Bombay has prepared a Manual for the guidance for those who manned the scheme in the college. In the year 1996 it appears that some of the students of the petitioners college complained to the Vice Chancellor of University that despite their completing 120 hours of NSS work they were not given the benefit of 10 grace marks. They had also complained that the students were required to pay Rs. 60/- (Rs. 20/- at the time of enrolment and Rs. 40/ at the time of filling up of their diaries.) They further made a grievance that they were also required to spend for transportation and refreshments during the NSS activities. It appears that an enquiry was held by the University and it directed the college to investigate the matter. Pursuant thereto the petitioner No. 2 looked into the matter and pinpointed the responsibility of the lapses in the implementation of the NSS on the two respondents Professors viz. Professor Singh and Professor Tiwari, who were called upon to furnish their explanation. Both the Professors submitted their reply to the Principal the petitioner No. 2 and explained the position in respect of the charges levelled against them and denied that they had committed any misconduct as alleged.
5. Not satisfied with the explanations the petitioners instituted a departmental enquiry by appointing Shri S.P. Karvande, a retired Addl. Registrar of this High Court, to enquire into the charges levelled against the professors. On 14-9-1996 both of them were served with chargesheet and statements of allegations. Both the Professors participated in the enquiry which was concluded by the Enquiry Officer on his submission of the enquiry report as required under the University Statute under Clause 44(H). The Executive Committee of the petitioner No. 1 accepted the report of the Enquiry Officer and decided to terminate the services of both the Professors, who came to be terminated by an order dated 30-1-1997 w.e.f. 3-2-1997.
6. Both the Professors preferred an appeal challenging the order of termination before the Tribunal. It appears that the learned Presiding Officer of the Tribunal was not satisfied with the conduct of the enquiry and therefore, remanded the matter for further enquiry by giving certain directions to the Enquiry Officer. It appears that the Tribunal thought it proper to have the evidence of the Principal of the college in support of the charges. After remand the Enquiry Officer again conducted the departmental enquiry afresh by giving opportunity to both the asides. This time the evidence of the Acting Principal of the College was also recorded. There was no complaint of violation of the principles of natural justice by the professors, except a grievance that the Enquiry Officer had put a time limit on the cross examination of the principal after recording his reasons. The Enquiry Officer submitted his report recording that the misconduct levelled against the professors were proved. The petitioners thereafter issued termination orders on 23-3-1998 terminating the services of respondent No. 1. Meanwhile it appears that 2nd professor had expired and his legal heirs and representatives appear to have pursued the matter and filed fresh appeals before the College tribunal questioning the legality, propriety and justifiability of the orders of the termination.
7. After hearing both the parties the learned Presiding Officer of the College Tribunal by his Judgment and Order dated 27-11-1998 partly allowed the appeal and set aside the termination order of the respondent No. 1 and substituted the same by reinstatement without back wages with punishment of withholding of two increments for two years in the time scale.
8. Shri Prashant Chavan, the learned Counsel for the petitioners has submitted that the following charges levelled against both the professors were proved in the departmental enquiry held against them second them:-
"(a) Collecting money from the students pertaining in NSS activity even though same was not permissible;
(b) Making delayed payment to children Aid society;
(c) Paying Rs. 1074/- for checking and arranging forms of the students participating in NSS Scheme, even though, the same was not permissible;
(d) Sending wrong and incorrect list of students who participated in NSS activity.
(e) Not handing over the entire record of NSS activities to the Principal or to the committee appointed in that respect."
The Enquiry Officer has recorded his findings on each count and has given reasons for his conclusions. The petitioners have acted on the report of the Enquiry Officer and have imposed punishment of dismissal of the two professors in accordance with law. According to the learned Counsel, the Tribunal ought not to have interfered with the decision of the management of the petitioners. Shri Chavan has further pointed out that the Tribunal having held that both the professors were guilty of the aforesaid charges, he should not have substituted the punishment of dismissal of the respondent No. 1. It was further pointed out by Shri Chavan that the Tribunal having held that the enquiry was fair and proper and that the charges were duly proved ought not to have interfered with the punishment of dismissal by granting reinstatement without back wages. Shri Chavan has also pointed out that the charges levelled against the professors were serious enough warranting the extreme punishment of dismissal from service.
9. Shri Sabnis, the learned Advocate for the respondent No. 1 and the legal heirs of the deceased professor has submitted that the concerned professors were not guilty of any charges levelled against them. As far as the charge of collection of fees is concerned that was being done under the orders of the principal. In support of his submission on this count he has relied on a circular signed by the Principal in the year 1983 prescribing fees for the N.S.S. to be collected from the students. He has also relied on several other subsequent circulars which were issued by the concerned Professors who were Incharge of the NSS Program. He has also submitted that these circulars were circulated amongst the teaching staff including the Principal and at no point of time their authority as the Incharge of the NSS program was questioned. It was also pointed out that they have maintained proper accounts which were audited and that there was absolutely no misappropriation of the funds collected for the purpose of NSS Program. Shri Sabnis has therefore submitted that the collection was made under the authority of the Principal given in the year 1983 and thereafter it was continued by presumption and understanding. The professors had not kept anything secret as every year similar circulars were issued by them for collection of the form fees for the NSS Program. Shri Sabnis has also pointed out that there was a delay of about two months in remitting the sum of Rs. 1074/- to the Children Aid Society as on the last date on 29-4-1996 was the end of the academic year and since he had gone to his native place on account of the summer vacation he had deposited the said cash in his own account and when he came back he had forwarded a cheque to the Children Aid Society. There was no intention of committing any act of misappropriation and that he had not misappropriated any amount. Instead of bringing cash in a crowded local train from Bhayander he gave a cheque from his own account in the name of the said society. Shri Sabnis further pointed out that a detailed reply to the chargesheet was given. Shri Sabnis has therefore submitted that the Tribunal has recorded the cogent reasons to quash and set aside the orders of dismissal. According to the learned Advocate the Professors have been sufficiently punished by way of denial of back wages from the date of dismissal i.e. 30-1-1997 till the order of the Tribunal i.e. 17-11-1998.
10. I have carefully gone through the proceedings and I have also heard both the learned Advocates for their parties. There is no dispute about the powers of the College Tribunal under section 61(2)(d) of the Maharashtra Universities Act, 1994. The College Tribunal is empowered to award such lesser punishment as it may specify in lieu of dismissal, removal or otherwise termination of service or reduction in rank. The Tribunal can impose any of the punishments prescribed in statute 440. I have, therefore, to consider whether the Tribunal has exercised its powers properly and within the four corners of the law. The Tribunal has observed in paragraph 33 as under :
"It is true that the appellants are guilty of collecting money from students, which was not permissible. Held guilty of making delayed payment to the Children's Aid Society, also held guilty of paying Rs. 1074/- for checking and arranging forms which was again not permissible and sending a wrong and incorrect list of students for grace marks and also of not handing over the entire record to the Principal or the committee appointed. I found that the practice that has been pleaded of collecting money from students at the time of enrolment and thereafter has been in vogue for quite sometime and the authorities concerned did not check the same. I am particularly referring to the role of the Principal in that behalf. The two appellants have been in service for a long time (Prof. Tiwari since 1972 and Prof. Singh since from 1979) and they have not been charged with misappropriation of funds except in the case of payment of the Children's Aid Society, where it is a case of delayed deposit of that amount and payment of the same out of the personal account of one of the delinquents. I, therefore, find that the extreme penalty of termination of service is required to be suitably modified."
I may observe here that though the Tribunal has found the Professors guilty of collecting money from students which was not permissible in accordance with the Management. We cannot lose sight of the fact that in the year 1983 the Principal himself had issued a circular prescribing fees to be collected for the NSS Program from the students. The respondent Professors, who were Incharge of the Program followed the said practice. They did not collect the fees surreptitiously or secretly. They had issued every time circulars prescribing collecting of fees for the NSS Program. These circulars were circulated amongst the teaching staff and therefore, they were publicly known. It therefore cannot be said that the Principal was kept in dark and that he was not knowing. The respondents Professors as Program Incharge were requiring the students to pay the enrolment fees for the NSS Program and the amount collected was accounted for and such accounts were audited regularly. It is not that the Professors themselves had misappropriated the entire amount. They had kept proper accounts which were audited. Technically it was not permissible for even the Principal to issue the first circular in the year 1983 to collect fees from the students under the scheme. Again technically, the concerned Professors were also not authorised to collect such fees from the students for the scheme. However, it is the case of the Professors that on receipt of the grant from the Government the students were refunded the said amount. However, though the Tribunal has held the Professors guilty of delayed payment to the Children's Aid Society to the tune of Rs. 1074/- there was a delay of two months which was explained by the professor as he had gone to his native place on account of vacation and as soon as he came back he had deposited the said amount. It therefore cannot be said that the professors have misappropriated the amount. According to me, no misconduct in the sense in which it is understood is proved against the Professors. They have however, committed irregularities in their conduct. In my opinion for such technical irregularities both the Professors who have put in long service cannot be inflicted with the extreme punishment of dismissal. The NSS Scheme was not part of their usual duty. It was an additional work which they were required to perform in the college and they did so though while doing so they did commit the aforesaid irregularities. I , therefore, agree with the learned Tribunal that the punishment of dismissal was disproportionate considering the nature of the charges levelled and proved against them. Under the Maharashtra Universities Act, 1994 the Tribunal is specifically empowered to substitute the punishment imposed by the management. The Tribunal has given cogent reasons for substituting the punishment of dismissal by denying full backwages and by imposing the punishment of stoppage of two annual increments. According to me, there is no infirmity in the order of the Tribunal which warrants any interference by this Court under its extra ordinary jurisdiction of Article 226 of the Constitution of India. In my opinion there is no miscarriage of justice. The Professors have been suitably punished by denying them full back wages and by imposing the punishment of stoppage of two increments.
11. One of the professor Shri Tiwari had expired during the pendency of the Appeal. His legal heirs would be entitled to terminal and pensionary benefits in accordance with the rules as on the date of the death of Professor Tiwari. The second Professor Shri Singh would be entitled to get reinstatement without backwages from the date of his dismissal till the date of the order dated 27-11-1998. Since the petitioners had sought stay of the impugned order of the Tribunal and since the stay is now being vacated it is needless to mention that Professor Singh would be entitled to get salary after the date of the Tribunal's order till he would be reinstated.
12. In the aforesaid circumstances and for the reasons recorded by me Rule is discharged in all the above petitions. There will be no order as to costs.
13. Parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court.
Rule discharged.