Sharadchandra (Dr.) S/O ... vs General Secretary, Saraswati ...
2004 Latest Caselaw 630 Bom

JUDGMENT

1. Being aggrieved by the rejection of his appeal filed under Section 42B(1) of the Marathwada Universities Act, 1974 by the learned Presiding Officer of the University & College Tribunal at Aurangabad, the petitioner has approached this Court challenging the order of removal dated 25-3-1986 and the consequential dismissal of the appeal by the said Tribunal.

2. The petitioner holds degrees of M.Sc. as well as Ph.D. and he came to be appointed initially as a Lecturer in Yogeshwari Mahavidyalaya, Ambejogai where he worked from 1959 to 1963. Thereafter he came to be appointed as Lecturer in Botany by respondent No. 1 society in its college by name Saraswati Bhuwan College of Arts, Commerce and Science at Aurangabad. He was confirmed in 1965 and thereafter he also became Head of the Department of Botany. He was appointed as Principal of the Science College of the respondent No. 1 society at Aurangabad with effect from 15-6-1972. He continued in the said post till the order of removal was passed on 25th March, 1986. He was also acting as Secretary of the College Committee till he was removed from the said post some times in 1985.

3. The Governing Council of the respondent No. 1 alleged certain financial misappropriation at the hands of the petitioner as well as the acts of inefficiency, negligence and illegalities while functioning as Principal. The respondent No. 1, therefore, initiated departmental inquiry for which Shri P. D. Palnitkar retired District and Sessions Judge came to be appointed as Enquiry Officer on 7-5-1985. A charge-sheet dated 27-5-1985 was served on the petitioner. It contained in all 10 charges. It was accompanied by the statement of allegations, the list of documents as well as the witnesses and the petitioner was called upon to submit his defence statement, if any. He was placed under suspension with effect from 17-6-1985. At the same time, Special Civil Suit No. 67 of 1985 also came to be filed against the petitioner by respondent No. 1 in the Court of learned Civil Judge, Senior Division, Aurangabad, for recovery of an amount of Rs. 1, 20, 982. 16 ps with interest. In the said suit, the petitioner - defendant had submitted an application on 8-7-1985 praying for injunction restraining the respondent No. 1 and the Enquiry Officer from proceeding with the inquiry. The said application was allowed by the learned Civil Judge by informing the respondent No. 1 not to proceed with the inquiry. This order was challenged by respondent No. 1 in Appeal from Order No. 30 of 1985 and the restraining order came to be vacated. The petitioner submitted his written statement before the Enquiry Officer in support of the charges No. 6 to 10 on 29-7-1985. He submitted another written statement styled as "tentative written statement" in respect of charge Nos. 1 to 5 on 2-12-1985, even though Special Leave Petition (Civil) No. 564 of 1985 filed by the petitioner. The Special Leave Petition came to be dismissed on 17-2-1986. In the meanwhile, the Enquiry Officer has submitted his findings on 6-2-1986 holding the petitioner guilty of the charges levelled against him and the Enquiry Officer recommended the petitioner's dismissal from service.

4. A second show-cause notice was issued to the petitioner on 4-3-1986 in respect of the proposed punishment of dismissal. He submitted his reply to the said notice on 9-3-1986. By order dated 25-3-1986, he was removed from service by way of punishment pursuant to the resolution of the Governing Council of respondent No. 1. The said order of removal was passed under the signature of the General Secretary of the respondent No. 1 society. As noted a little while ago, the said order of removal-was challenged in Appeal No. 4 of 1986 and it came to be dismissed on 24-2-1987.

5. Shri S.R. Barlinge, learned Advocate for the petitioner in his lengthy arguments, has raised several grounds challenging the order of removal as well as the decision of the University Tribunal. It was submitted that there were no service Rules framed and made applicable to the post of Principal either by the respondent No. 1 or by the then Marathwada University or by the State Government. In the absence of such service rules, the management had no powers to initiate disciplinary proceedings against the Principal. The General Secretary could not be disciplinary authority for the respondent No. 1 society. It was only the Governing Council which could have passed the order of punishment. The charges levelled against the petitioner were vague, concocted and baseless. In respect of the allegations set-out in Charge Nos. 1 to 5, already special civil suit was filed. Charge Nos. 6 to 10 pertain to the alleged deficiencies or acts of negligence attributed to the petitioner. In respect of these charges there was absolutely no evidence which could be relied on. The Inquiry was not conducted in keeping with the principles of natural justice and the Enquiry Officer ought to have waited for the special leave petition to be decided especially when the petitioner had informed regarding the pendency of said petition before the Apex Court. The inquiry proceedings were hurriedly completed and the Enquiry Officer, without application of mind to the documentary evidence on record as well as the statements recorded, proceeded to submit his report on 6-2-1986. The report submitted by the Enquiry Officer holding the charges as proved cannot be relied on as the same does not give proper reasoning in support of every charge, Even the College Tribunal in appeal failed to appreciate the evidence - both oral as well as documentary - as recorded before the Enquiry Officer, seriousness of the charges and their veracity. The Tribunal mechanically proceeded to note down its observations in respect of the documents brought on record and there was no assessment of the evidence so as to come to a definite finding. If the Enquiry Officer had assessed the evidence with proper application of mind the petitioner could have been held to be not guilty. In any case, once the suit was compromised, there was no force in charge Nos. 1 to 5 and for the remaining charges the punishment of removal was grossly disproportionate. To continue his arguments, Shri Barlinge submitted that even if the petitioner was found to be inefficient or negligent or otherwise guilty while discharging his functions as the Principal, there was no impediment in his being continued as a Lecturer in the same college or any other college of the respondent No. 1 society.

6. Shri Arvind Joshi, learned Advocate for the respondent No. 1 has supported the decision of the University Tribunal and thus, the order of removal by way of punishment. He contended that the behaviour of the petitioner was not only unbecoming of an academic Head of the college but indeed it was a behaviour maligned with dishonesty, fraud and misuse of the college funds illegally. The petitioner failed to discharge his functions as Principal and his negligent attitude resulted in lowering the academic standards of the college. There was no discipline amongst the students as well as the teachers and with the help of some staff, the petitioner was busy in mismanagement of the funds. The Enquiry Officer has considered the evidence and in his exhaustive findings he has held the charges proved. The tribunal went through the evidence afresh and in addition, the documents placed before it were also duly examined in assessing the correctness of the findings recorded by the Enquiry Officer. The Enquiry Officer as well as the Tribunal rightly held that the charges levelled against the petitioner were duly proved and the Governing Council though was satisfied to impose the punishment of dismissal had taken a lenient view and passed an order of removal so that the petitioner could be eligible for some pensionary benefits, urged the learned Advocate.

7. While this petition was pending before this Court, the petitioner moved Civil Application No. 6257 of 1997 praying for settlement of the pensionary/retiral benefits. By orders dated 17-6-1988 and 29-1-1999 the respondent No. 1 as well as the Government of Maharashtra through the Department of Higher Education were directed to process the petitioner's case for settlement of the retiral benefits. The learned Counsel for the respondent No. 1 submitted that the management had taken due steps to process the petitioner's papers for pension and the queries raised by the Joint Director of Higher Education at Aurangabad have been replied.

Shri S.R. Barlinge, learned Advocate for the petitioner, on the other hand, stated that in spite of orders having been passed by this Court, the petitioner has not yet received the pension and other retiral benefits. Shri K. B. Choudhary, learned Assistant Government Pleader, has placed before the Court the files from the office of the Joint Director of Higher Education at Aurangabad. It is noticed from the same that on 1-1-2004 the Joint Director of Higher Education submitted the petitioner's case for compassionate pension under Rule 101 of the Maharashtra Civil Services (Pension) Rules, 1982, more so when the Accountant General's office at Nagpur had vide letter dated 8-2-2002 informed that the petitioner is entitled to compassionate pension at the rate not exceeding 2/3rd of the invalid pension under Rule 101 of the Pension Rules. The proposal of the Joint Director of Higher Education was submitted to the Director of Higher Education at Pune, who, in turn, has reportedly forwarded it to the Government of Maharashtra for final decision. It is still pending.

8. The record and proceedings called for from the Tribunal contained all the relevant documents which were considered by the Tribunal. It is evident that it was the Governing Council which passed a resolution to initiate disciplinary inquiry against the petitioner, the Enquiry Officer was appointed as per the said decision and he was empowered to frame the charges and issue charge-sheet to the petitioner. After he submitted the inquiry report, second show cause notice was issued proposing punishment of dismissal and after receiving the petitioner's written explanation the Governing Council again passed the resolution to that effect and he was awarded punishment of removal rather than dismissal by taking a lenient view. The order of removal dated 25-3-1986 makes it abundantly clear that the decision of awarding punishment of dismissal was that of the Governing Council and the General Secretary had signed the said order as authorised by the Governing Council.

9. The Enquiry Officer's report runs into 100 typed pages and every charge has been discussed vis-a-vis the evidence placed on record. On behalf of the management, the statements were recorded in support of the charges and the documents in support of the charges were also placed. The copies of these documents were made available to the petitioner. The petitioner submitted his first reply to the charges No. 6 to 10 on 29-7-1985 and the so-called tentative written statement to the charges No. 1 to 5 was submitted on 2-124985. He was given notice of inquiry and was called upon to participate in the same. There was no grievance raised regarding the procedural illegalities in conducting this inquiry except reiterating the grievance that while the SLP was pending or the suit was pending there was no case to proceed with the inquiry more so because the allegations set-out in Charge Nos.l to 5, were subject matter of the pending suit. The petitioner on his own initiative filed an application for temporary injunction in the suit wherein he was impleaded as a defendant and obtained the orders for stay of the inquiry proceedings. This Court had allowed Appeal from Order No. 30 of 1985 and set-aside the interlocutory order passed by the learned Civil Judge, Senior Division, Aurangabad. The challenge to the action of the management and the Enquiry Officer to proceed with the inquiry was negatived and therefore, the Enquiry Officer proceeded further with the inquiry. Finally the report was submitted on 6-2-1986.

10. In the appeal filed before it questioning the order of removal the University Tribunal on its own entered into a de novo inquiry on the basis of the record placed before it.

11. The first charge was regarding availment of unauthorised advances Rs. 44,010/- for salary advance, Rs. 27,483/- towards departmental advances, Rs. 24,875/- towards suspense accounts and Rs. 9955/- towards advance from the junior college account were the amounts towards the advances which were received by the petitioner from 1972 to 1984.

The second charge was regarding his failure to render the accounts for the advances. Thirdly, he was charged for failure to refund the amount of personal advances. Misappropriation of funds and acts of breach of trust were also the charges included in charge No. 3. It appears that a preliminary inquiry was ordered by the management and one Shri Rege had submitted his preliminary investigation report on 11-7-1984. On the basis of the said report, the Governing Council had decided to proceed against the petitioner. The same was at Exhibit 67 before the College Tribunal. The other documents were credit and debit balances (exhibit 50), the documents relating to the correspondence between the respondent No. 1 and the petitioner (exhibits 162 to 192), the vouchers of the amounts withdrawn by the petitioner (exhibits 196 to 199), the statement of accounts (exhibit. 52), the extract of cash book (exhibit 54), the extract of salary advances (exhibit 54A), extract of the departmental advance (exhibit 54B) and extract of suspense account (exhibit 54C) and the statement of advances taken by the petitioner from the junior college (exhibit 57).

The oral evidence of four witnesses was recorded namely; Shri Rege (exhibit 160), Shri Bardapurkar (exhibit 33), Shri Dusad (exhibit 195) and Shri Nagargoje (exhibit 205) by the Enquiry officer.

12. It is also evident that a team from the Accountant Generals office had also visited the said college and expressed its displeasure in its report submitted to the respondent No. 1 pointing out the irregularities, deficiencies and misappropriation of the funds. The statements of the petitioner reduced in writing accepting responsibility to make good all these advances were also on record. The recovery suit (Special Civil Suit No. 67 of 1985) has been undoubtedly compromised during the pendency of this petition on or about 29-10-1999 and the petitioner paid an amount of Rs. 1,00,000/- to the respondent No. 1 society against the claim of Rs. 1,36,681/-.

13. By filing Special Civil Suit No. 67 of 1985 for recovery of losses caused to it, the respondent No. 1 had not abdicated its managerial right to proceed against its academic head by way of departmental inquiry into the charges of financial mismanagement. The compromise was arrived at by the petitioner would not absolve him of the charges of misconduct. This Court had rightly set-aside the restraining order passed by the trial Court and allowed the management to proceed with the departmental inquiry. The said inquiry cannot be faulted on any count and even the Tribunal did not hold that the inquiry was vitiated or that the findings of the Enquiry Officer were in any way were unsustainable even though it proceeded to examine the charges de novo on the basis of the evidence that was placed on record. The Tribunal while entertaining this appeal acted as a first appellate Court and thus proceeded to re-appreciate the evidence.

14. On analysing the evidence the Tribunal in its lengthy judgment has gone through every individual charge and come to the conclusion that the charges have been proved. It is true that there are repetitions in the findings of the Tribunal but the fact remains that each and every charge has been gone into meticulously by examining the evidence and the findings have been recorded which are duly supported by proper reasoning.

15. Regarding the second limb of the charges namely; negligence of the petitioner in discharging his duties as a Principal, the statements of three witnesses i.e. S/Shri Bardapurkar, Nagargoje and Dusad support the said charge. The Enquiry Officer had recorded number of instances and more particularly in implementing different schemes formulated by the University Grants Commission by the petitioner in his capacity as Principal. Shri S.R.

Barlinge, learned Advocate, was right in his contentions that if the petitioner was found to be negligent or otherwise unfit in discharging his functions as a Principal he should have been reverted to the post of Lecturer. As noted earlier, the chargesheet had two parts - first part being financial irregularities and the second part was regarding negligence or inefficiency in discharging the functions of Principal. When both the sets of charges were proved, the management had no alternative but to award the punishment of removal. The charges regarding financial irregularities are of serious nature which demonstrate the integrity and character of the academic' head like the Principal and when the charges were proved the management was justified in losing its confidence in him. These charges of financial mismanagement were not really denied by the petitioner though he had submitted that he alone could not withdraw any cash from the bank as the cheques were required to be signed by more than one persons along with him. Even this defence has been examined by the Enquiry Officer. It is noted that the defence was without any substance.

16. The employer's right to proceed against an erring employee is inherent. This managerial right is no doubt governed by the service rules or the contract of employment. However, that does not by itself imply that in the absence of such service rules or the contractual terms the employer has no managerial right to proceed against the delinquent employee. The college where the petitioner was working as Principal is a fully aided institute by the Government of Maharashtra and the employees of the respondent No. 1 are entitled for pensionary benefits under the Maharashtra Civil Services (Pension) Rules, 1982. In the absence of its own rules or the rules framed by the University, the respondent No. 1 proceeded by following the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, by way of model rules or the procedure akin to the one prescribed under the said Rules. This approach by way of abundant precaution was followed by the management in keeping with the sanctity of the managerial functions of a private employer and the contentions that the management could not proceed to initiate the departmental inquiry cannot be accepted.

17. When the Enquiry Officer as well as the College Tribunal have separately recorded independent findings in respect of the charges levelled against the petitioner and held that the charges were duly proved, this Court while exercising its supervisory powers under Article 227 of the Constitution would not interfere with such findings unless manifest errors were noticed or the findings were without any support of evidence or reasoning or they are perverse.

The quantum of punishment on the basis of the proved acts of misconduct is a managerial function which cannot be interfered with by the adjudicators unless it is noticed that the punishment was grossly disproportionate to the charges proved. Under the circumstances, it is clear that the challenge to the order of removal as well as to the decision of the School Tribunal is devoid of merits. The petition, therefore, must fail.

18. The petitioner's claim for compassionate pension is, however, pending with the Government of Maharashtra and the State is required to take a final decision in keeping with the provisions of Section 101 of the Pension Rules. The petitioner had reached the age of superannuation on or about 15-10-1993. He has been waiting for the last eleven years to receive his retiral benefits, as may be available to him under the Rules. In spite of the directions issued by this Court in Civil Application No. 6257 of 1997 precious little has been done by the authorities concerned in the State Government. The communication dated 8-2-2002 received by the Joint Director of Higher Education at Aurangabad from the Accountant General's office at Nagpur has set-out the details of the pensionary benefits that could be considered by the competent authority for payment to the petitioner under Rule 101 of the Pension Rules. Those benefits could not be disbursed to the petitioner in the absence of Government sanction for compassionate pension.

19. In the result, the writ petition is dismissed and Rule is discharged with no order as to costs. The Government of Maharashtra through the Secretary in the Department of Higher Education is hereby directed to decide the petitioner's pending claim for compassionate pension as well as other benefits that may be available to him under the Pension Rules, 1982 as expeditiously as possible and in any case by the end of 31st July, 2004. The final order in that regard shall be communicated to the petitioner on or before the said date. CA is disposed of accordingly.