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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
LETTERS PATENT APPEAL NO. 316 OF 2009
with
LETTERS PATENT APPEAL NO. 441 OF 2009
IN
WRIT PETITION NO. 2236 OF 1999
.................
LETTERS PATENT APPEAL NO. 316 OF 2009
APPELLANT : Kumar Keshaorao Kale,
Aged about 68 years, Occu. Retired Principal,
College of Engineering & Technology, Akola,
R/o 10, Hare Ram Hare Krishan Society,
Opp. Utsav Mangal Karyalaya,
Jatharpeth, Akola.
VERSUS
RESPONDENTS : 1] Shri Shivaji Education Society,
Amravati, through its President,
2] Shri Shivaji Education Society,
Amravati, through its Secretary,
3] Presiding Officer,
University and College Tribunal,
Nagpur University Law College Campus,
Nagpur.
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Mr. M.M. Sudame, Advocate for the appellant
Mr. Abhay Sambre, Advocate for respondent nos.1 and 2
Mr. K.L. Dharmadhikari, A.G.P. for respondent no.3
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WITH
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LETTERS PATENT APPEAL NO. 441 OF 2009
APPELLANTS : 1] Shri Shivaji Education Society,
Amravati, through its President,
2] Shri Shivaji Education Society,
Shivaji Nagar, Amravati
through its Secretary,
VERSUS
RESPONDENTS : 1] Kumar Keshavrao Kale,
Aged about 58 years,
Assistant Professor in Artichetec,
College of Engineering & Technology, Akola,
R/o "Pradnya", B-1, Sudhir Colony,
Akola - 444 005, Tq. and Dist. Akola.
2] Presiding Officer of
University and College Tribunal,
Nagpur University, Nagpur.
----------------------------------------------------------------------------------------------
Mr. Abhay Sambre, Advocate for the appellants.
Mr. M.M. Sudame, Advocate for respondent no.1
Mr. K.L. Dharmadhikari, A.G.P. for respondent no.2
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CORAM : B. P. DHARMADHIKARI and
ARUN D. UPADHYE, JJ.
DATE : SEPTEMBER 04, 2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J.)
The judgment delivered by the learned Single Judge of
this Court on 08.6.2009 in Writ Petition No. 2236/1999 form the
subject matter of both these Letters Patent Appeals. L.P.A.
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No.316/1999 is by the employee, who seeks restoration of the
judgment delivered by the College Tribunal in his favour. L.P.A.
No.441/2009 is by the employer, who seeks dismissal of the appeal
filed by the employee before the College Tribunal.
2] The College Tribunal at Nagpur is joined here as
respondent No.3 and respondent no.2, respectively. It has decided
Appeal No. A-5 of 1996 on 19.2.1999. The operative part of this
judgment reads as under :
ORDER
"The appeal succeeds. The impugned order of demotion dated 12.3.1996 is hereby quashed and set aside. The appellant shall stand restored to his position as the Principal of the College with entitlement to all benefits of salary and other dues from the date of the order of demotion. All such arrears as would thus be due to the appellant shall be paid by the respondents within a period of three months from the date of this order."
3] The learned Single Judge, in Writ Petition No. 2236/1999 after hearing the parties, has substituted the same by following directions -
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4 LPA316.09+1.odt "15. In view of this, the petition is partly allowed. The impugned order, in so far as it directs payment of arrears of salary from the date of demotion, is set aside and substituted by the following.
16. Respondent no.1 would be paid the difference of salary to which he would be entitled but for his demotion, and the salary which he would have been entitled to receive upon his demotion, from the date of his demotion till the date on which he would have ordinarily retired on superannuation. Respondent no.1 has already received certain amounts deposited by the petitioners in terms of interim orders by this Court. If the amounts so received do not exceed the amount due by a sum less than Rs.25,000/- the same shall not be recovered, considering the expenses that respondent no.1 must have incurred in fighting against his wrongful demotion."
Thus, the learned Single Judge finds the employee entitled to receive difference in salary in the post of Assistant Professor and Principal. 4] The employee has already superannuated from employment as he reached that age on 31.3.2002. The employer has, after departmental enquiry, inflicted upon him punishment of demotion as Assistant Professor on 12.03.1996. Thus, in view of ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 5 LPA316.09+1.odt superannuation, this adjudication may have impact on treatment to be accorded to the status of the appellant and therefore, quantum of his wages between 12.03.1996 to 31.3.2002.
5] The facts not in dispute are that after an advertisement for the post of Principal dated 07.12.1984, the employee was selected after considering his application and after interview by the duly constituted Selection Committee. He was appointed as a Principal on 17.5.1985.
6] It appears that for various charges, a charge-sheet was served upon the employee on 06.6.1990. He was already placed under suspension from 01.1.1990. There were total nine charges and charge no.1 is about misappropriation under four different heads. Charge no.2 was regarding mis-management. After completion of enquiry, the Inquiry Officer found all nine charges proved. Because of this, punishment of demotion to the post of Assistant Professor was inflicted upon him.
7] Both the learned counsel for the petitioners fairly state
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that some proceedings in relation to this enquiry or punishment were filed by the employee in-person before the Industrial Court at Amravati. The Industrial Court there directed the employer to deposit salary of the employee as Assistant Professor for the period from 12.03.1996 and the employer claims that, it has been so deposited for over a period of three years. Both the learned counsel, however, are not in a position to explain the fate of the proceedings before the Industrial Court or then, whether said amount was withdrawn by the employee or by employer.
8] We have heard Mr. Sambre, learned counsel for the employer, Mr. Sudame, learned counsel for the employee and Mr. Dharmadhikari, learned Assistant Government Pleader for the Tribunal.
9] Mr. Sambre, learned counsel for the employer submits that as the charges are of misappropriation or mismanagement or then providing employment unauthorizedly to a person on a non- existing post, no relief could have been given. Without prejudice, he has invited our attention to the prayers in the memo of appeal before ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 7 LPA316.09+1.odt the College Tribunal to demonstrate that there, no back wages have been prayed for. He contends that in absence of such prayer, the back wages could not have been awarded. According to him, the learned Single Judge also in this situation could not have asked the employer to pay even difference in salary for the post of Principal and Assistant Professor. He contends that the said direction is unsustainable and without jurisdiction.
10] Mr. Sudame, learned counsel for the employee points out that earlier, the advocates were not permitted to appear before the College Tribunal and the matter was fought in-person by the employee. He, therefore, did not make prayer expressly for back wages. He, however, points out that even the contention about non- availability of punishment of reversion/demotion was not advanced. That ground was taken in the writ petition before the learned Single Judge and the learned Single Judge has found that such punishment upon a direct recruit is legally not sustainable. Mr. Sudame, learned counsel explains that the learned Single Judge, however, has erroneously interpreted the interim orders dated 28.6.1999 in Writ Petition No. 2236/1999. The said orders only ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 8 LPA316.09+1.odt permitted the employee to join on the post of Assistant Professor and there was no positive direction to him to report for duty on that post. As, a Principal could not have been reverted to the lowest post in teaching cadre, there was no question of the employee joining on that post. He submits that in absence of specific direction, the order dated 28.6.1999 could not have been used by the learned Single Judge to restrict entitlement of the employee only to the difference in salary.
11] After hearing the respective counsel, we find that the employee was working in a private unaided engineering college. After superannuation, he does not get any pension. 12] It is also not in dispute before us that after superannuation, the departmental enquiry could not have been proceeded or reopened against the employee.
13] A perusal of the judgment delivered by the College Tribunal reveals some important observations from paragraph 13 onwards. In paragraph 13, the College Tribunal has noted that the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 9 LPA316.09+1.odt manner of conducting enquiry has resulted in grave injustice to the employee, who was appellant before it. On his application, the Inquiry Officer passed an order, dated 14.4.1990 and observed that the management need not produce the documents for the period subsequent to 01.1.1990 i.e. the date on which the employee was put under suspension. However, the very same Inquiry Officer while recording findings and concluding that the charges are proved, did rely upon the documents, which were of a subsequent period. Those documents are also specified by the College Tribunal. It appears that those documents were the audit reports. Similarly, while considering charges at serial nos. 4, 5 and 6, the College Tribunal finds that all the documents were subsequent to said date of suspension. It has also found that a very large number of documents demanded by the employee to meet the charges, were not directed to be produced by the Inquiry Officer. The College Tribunal found that fairly a large number of documents, though not all of them, dealt with the charge pertaining to alleged illegal and irregular admissions granted by the employee. In paragraph 14, it has looked into non-production of the documents requested by the employee, though there was a direction by the Inquiry Officer to produce. The applications dated 13.8.1990 ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 10 LPA316.09+1.odt and 23.8.1990 moved by the employee and the orders passed by the Inquiry Officer together on it directing production of 30 documents is also looked into and the College Tribunal has taken note of the fact that those documents were not supplied to him despite the order of the Inquiry Officer. Though, the management claimed that certain documents were handed over to him, it could not produce any acknowledgement to substantiate the same.
14] With this discussion, we find it proper to look into the discussion by the College Tribunal on charge no.5. Some discussion in paragraph 22 of the judgment of College Tribunal shows that the person provided employment was the son of previous Vice President of the employer Education Society and the appointment was given at the instance of the Vice President Shri Khotare of the employer trust. 15] This discussion is sufficient to show that the enquiry conducted against the employee cannot be said to be fair and valid. The College Tribunal ought to have framed an issue regarding validity of departmental enquiry first and as that has not been done, its evaluation regarding fairness of departmental enquiry and on ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 11 LPA316.09+1.odt perversity of findings, appear together in its judgment dated 19.2.1999. The moment enquiry is found to be vitiated, the findings and material on record of departmental enquiry cannot be looked into.
16] The course adopted by the College Tribunal was not objected to either by the employee or by the employer. Even in writ petition filed before the learned Single Judge, no objection to this procedure was raised. The employee through his counsel only pointed out impermissibility of punishment of reversion in his case as he happened to be a direct recruit.
17] The learned Single Judge has considered all the arguments while delivering the impugned judgment. The judgment is delivered on 08.6.2009 i.e. more than seven years after superannuation of the employee. As no leave to employer to hold departmental enquiry again, either de novo or from the stage of defect, is possible in this matter, with above defects in the departmental enquiry, we have to appreciate the impugned judgment delivered by the learned Single Judge on 08.6.2009. ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 :::
12 LPA316.09+1.odt 18] After looking into the entire material, the learned Single
Judge has found that the charges cannot be said to have been established. While considering objection to grant of full back wages, absence of expressed prayer and material to demonstrate absence of gainful employment has been looked into. The learned Single Judge has also noticed the order dated 28.6.1999 passed by this Court in Writ Petition No. 2236/1999 permitting employee to report as Assistant Professor. In that background, it has also referred to the legal position that when enquiry is found to be vitiated or punishment is set aside, full back wages must follow. Thus, after looking into all relevant aspects, it has found it proper to restrict the benefit to the amount of difference in salary payable as Assistant Professor and as Principal.
19] In statutory appeals in disciplinary matters, back wages are not awarded because of its loss or its damages to the employee. The back wages are not awarded when it is established that the employee had some other gainful employment. Here, we are dealing with a much superior and higher post of Principal. The incumbent employee had option to work as Assistant Professor. The knowledge ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 13 LPA316.09+1.odt that he could not have been reverted as Assistant Professor at all, has come to him only after filing of writ petition before this Court. He may have recovered wages as Assistant Professor also, as the employer deposited the amount thereof with the Industrial Court at Amravati for the period in excess of three years at his behest. In this situation, his refusal to physically work needs to be taken note of to deny him full back wages. Difference in salary only is rightly granted to him.
20] At this stage, our attention is invited to the fact that certain amount is deposited and is lying with the Registry of this Court. This is apparent from paragraph 3 of the judgment dated 08.6.2009 in Writ Petition No. 2236/1999. Mr. Sudame, learned counsel seeks leave to withdraw that amount. Mr. Sambre, learned counsel is opposing him. According to him, if the amount paid before the Industrial Court is already withdrawn by the employee, amount with this Court may not at all be payable to him. He is, therefore, seeking time to find out the exact position. 21] As we have recorded above that the fact of proceedings before the Industrial Court is not known to the respective counsel, ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:56:25 ::: 14 LPA316.09+1.odt we, therefore, grant the employee / employer leave to move appropriate application for withdrawal of amount lying in deposit with the Registry of this Court and Industrial Court. If such application is moved, all these issues shall be looked into at that juncture.
22] Because of defects in departmental proceedings, appeal of the employer can not be allowed. Similarly, full back wages also cannot be given to the employee. Taking overall view of the matter, we are satisfied that the ultimate relief given by the learned Single Judge to the employee cannot be said to be either erroneous or perverse. In substance, we find no case made out in either of the appeals warranting our intervention. Both these Letters Patent Appeals are, therefore, rejected. No costs.
JUDGE JUDGE
Diwale
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