Bombay High Court
Dhirendra Kumar Pannalal vs Vivesvaraya National Institute ... on 13 June, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.5582 of 2005
Dhirendra Kumar Pannalal Dixit,
aged about 58 years, Occ.-Service,
R/o.-Trimruti Nagar, Nagpur. .... Petitioner
Versus
Visvesvaraya National Institute of
Technology, Nagpur through its Director. .... Respondent
Shri D.V. Chauhan, Advocate for petitioner.
Shri Anand Parchure, Advocate for respondent.
Coram : B.P. Dharmadhikari &
Kum. I.K. Jain, JJ.
th th
Dated : 10
and 13
June, 2016.
ORAL JUDGMENT [Per Kum. I.K. Jain, J.]
This petition arises against the order of removal of petitioner
from service passed by respondent on 30-08-2005.
2] Briefly stated facts are that;
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Petitioner a post graduate in Power Engineering was
appointed as a Lecturer with Visvesaraya Regional College of
Engineering at Nagpur (VRCE) now known as VNIT a deemed
University. In the year 2004, he was working as Assistant
Professor in the Mechanical Engineering.
3] On 11-05-2004, petitioner was served with a charge-sheet.
The articles of charge alleged that three students Rajesh
th
Rentapalli, Saurav Kumar and Malay Biswas of VIII Semester
Mechanical Engineering lodged complaints on 26-12-2003 alleging
therein that petitioner was compelling them to join tuition and
accepted money from those students.
4] Petitioner responded to the charge-sheet vide his written
statement dated 01-06-2004. He raised a defence of false
implication and denied the charges in toto.
5] The Director of respondent/Institute appointed Shri Justice
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M.S. Deshpande, former Judge of this Court as an Enquiry Officer
to hold an enquiry into the charges framed against the petitioner.
During the course of enquiry, in all five witnesses were examined
including complainant Malay Biswas. Considering the evidence
and material made available on record, Enquiry Officer came to
the conclusion that charges framed were not proved.
6] Report of enquiry was submitted to the disciplinary authority.
Second show cause notice was issued to petitioner in the
background of resolution of Board of Governors dated 06-07-2005.
In response to the second show cause notice dated 20-07-2005,
petitioner submitted his explanation on 05-08-2005. The
Disciplinary Authority on 30-08-2005 disagreeing with the findings
recorded by Enquiry Officer imposed punishment of removal of
petitioner from service, which is the subject matter of instant Writ
Petition.
4 judg.130616 wp 5582.05.odt
7] The learned Counsel for petitioner Shri D.V. Chauhan
assailed the order of punishment removing the petitioner from
service on several grounds. The basic challenge is to the
fundamental error committed by the Disciplinary Authority in
disagreeing with the findings recorded by the learned Enquiry
Officer that there was no evidence to hold the petitioner guilty of
the charges levelled. Another contention raised on behalf of
petitioner is that principles of natural justice were violated as
second show cause notice issued to him indicates that Disciplinary
Authority finally arrived at the conclusion and as per Rule 15(2) of
the Central Civil Services (Classification, Control and Appeal)
Rules, 1965, tentative reasons which were to be communicated
to the petitioner were not communicated. The learned Counsel
would submit that the reasons recorded by the Disciplinary
Authority are grossly erroneous and the punishment imposed on
the petitioner removing him from service is against the principles
of natural justice, arbitrary and illegal.
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8] In response to the submissions raised on behalf of
petitioner Shri Parchure, learned Counsel for respondents
submitted that in totality of the facts and circumstances, previous
complaints and past antecedents of petitioner findings recorded by
Enquiry Officer were not accepted by Disciplinary Authority and
by assigning proper reasons Disciplinary Authority has arrived at
the conclusion that petitioner was to be removed from the service.
The learned Counsel would submit that learned Enquiry Officer
had not properly considered the evidence and material placed on
record. Complaints of two other students were totally ignored and
so Disciplinary Authority was right in disagreeing with the findings
recorded by learned Enquiry Officer.
9] In view of the rival contentions raised by learned Counsel for
the parties, we have to now examine the first contention raised by
petitioner. It is not in dispute that at the relevant time, petitioner
was working as an Assistant Professor in Mechanical Engineering
and he was governed by Central Civil Services (Classification,
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Control and Appeal) Rules, 1965. It is also not in dispute that
three students who made complaint against the petitioner were
attached to petitioner since July, 2003. He was the project guide
of Mr. Rajesh Rentapalli, Saurav Kumar and Malay Biswas, who
made complaints against him on 26-12-2003. As mentioned in
articles of charge, petitioner forced these three students to join his
tuition classes and took money from them and thereby;
(1) obtained illegal gratification,
(2) misused his official position for personal gain, and
(3) committed gross irregularity in the discharge of
official duties with a dishonest motive.
10] To substantiate the charge, Institute examined one of the
three complainants Malay Biswas. Rajesh Rentapalli and Saurav
Kumar were not examined by the institute.
11] It is stated by Malay Biswas before the Enquiry Officer that
Prof. Dixit was his project guide. Saurav Kumar and Rajesh
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Rentapalli were also attached to Prof. Dixit. He states that he
could not get material for project and told Prof. Dixit about it. Prof.
Dixit told him that material would have to be procured from
abroad or Cement Industries in India. Malay Biswas further states
that Prof. Dixit said that Rs. 2000/- would be required for that
purpose. They collected Rs. 2000/- and handed over to Prof.
Dixit. He then says that after they paid money Prof. Dixit supplied
th
them material. The said material was for 7 Semester. That time
Prof. Dixit told them that Rs. 4000/- would be required for
procuring the material for final report.
12] In the cross examination it is admitted by Malay Biswas that
once in the first year he approached his teacher in one of the
subjects to examine his paper liberally. Prof. Dixit called and told
him that he would have to improve his performance. From the
admissions elicited in the cross examination of Malay Biswas it
can be seen that his performance in the examination was not
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satisfactory. He could not collect the material for project and
asked Prof. Dixit to procure material for him. It is also evident
from the cross examination of this witness that he informed the
acting Head of the Department Dr. N.V. Deshpande and Prof.
C.S. Moghe that Prof. Dixit was asking them for payment. He
then states that Dr. Deshpande and Prof. Moghe told them that
their project guide would be changed if they file a complaint.
13] Dr. N.V. Deshpande was examined as a witness by the
Institute. The evidence of Mr Deshpande shows that Prof. Padole
informed him about the grievances of students that Prof. Dixit was
demanding money from them. There is no whisper in the
evidence of Dr. Deshpande that students complained to him in
person. Prof. Padole is also examined during the course of
enquiry. He does not name petitioner. His evidence shows that
Prof. Chatterjee informed him about the complaints from students
against the professor. Prof. Chatterjee, too does not name the
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petitioner. Thus the evidence of these three faculty members is in
conflict with the evidence of Malay Biswas. It is apparent from the
cross examination of Malay Biswas that he did not attend mock
seminar for preparing them for the next seminar. Prof. Dixit, Prof.
Thombre and Dr. Deshpande had to assess the final seminar.
There is unequivocal admission in the cross examination of Malay
Biswas that his performance in the final seminar was extremely
poor. Thereafter, he was called by Prof. Dixit and Prof. Dixit told
him to improve his performance. All these facts brought in the
cross examination of Malay Biswas would indicate the strong
motive for Malay Biswas to implicate the petitioner with ulterior
motive to change the project guide anyhow.
14] Having considered that evidence of Malay is not reliable and
since Institute chose not to examine the other two complainants
Rajesh Rentapalli and Saurav Kumar, learned Enquiry Officer
came to the conclusion that it was impossible to hold petitioner
guilty of misconduct alleged and held charges as not proved.
10 judg.130616 wp 5582.05.odt
Date 13 June, 2016
th
15] Needless to state that when the Inquiry Officer (IO)
exonerates the charged officer/employee (CO) of all charges,
normally such officer is not guilty. The disciplinary authority (DA)
therefore exonerates him & drops the charges. However, if the
findings of IO are not acceptable to it either in part or fully, in that
event it gets right to disagree with such of the findings which it
finds unsustainable. It has to follow the procedure prescribed in
service rules. The DA after getting the inquiry report, has to
evaluate it & if it accepts the report as it is, the officer can not be
punished. But when it finds that some findings of the IO are bad, it
has to record its tentative reasons for its disagreement & then
serve a notice upon the CO calling upon him to explain as to why
the findings in report in his favour should not be accordingly
modified or reversed. In present matter s the IO has totally
exonerated the CO, it was not necessary for the DA to first have
explanation of CO before proceeding to evaluate the report. But in
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a hypothetical case, if the report finds CO guilty of few charges &
not guilty of the remaining, the DA will have to follow the procedure
stipulated by the Hon. Apex Court in case of Union of India vs.
Mohd. Ramzan Khan - (1991) 1 SCC 588 & ECIL vs. B.
Karunakar- (1993) 4 SCC 727. But in this case that contingency
did not arise as the CO was acquitted of all the misconducts by the
IO.
16] But then the opportunity to be extended or its nature does
not change & the DA can not arrive at a final verdict on fact of guilt
or otherwise without first extending to the CO an opportunity to
urge why & how a particular finding in his favour should not be
varied. The Rule 15(4) of CCA & CCS Rules employs the word
"tentative reasons" with some purpose. The DA can not conclude
the findings on fact without extending such an opportunity to the
CO or behind his back. If it does so, the principles of natural
justice expounded in cases of Mohd. Ramzan Khan & B.
Karunakar (supra) stand violated. It is therefore apparent that the
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prima facie view of DA is expressed in these tentative reasons for
its inability to agree with the findings of the IO. These tentative
reasons emanate from the report of the IO or the material which
has been proved on record of departmental inquiry. If the tentative
reasons do not spring from the inqiry records, the so called
reasons do not constitute legally sustainable grounds for issuing a
show cause notice to the CO. If the show cause notice issued by
the DA is found vitiated on any ground, then also the finding of IO
can not be discarded. If the explanation furnished by the CO is
found satisfactory, the tentative reasons of the DA become
unsustainable & the report of IO exonerating the CO must be
given effect to. Hence, in cases where the IO exonerates the CO
fully, the employer or the DA have to establish availability of
legally sustainable material to form a tentative reasons to disagree
with the conclusions of IO & adherence to the principles of natural
justice thereafter. It is these tentative reasons which thereafter
govern the further course of action & fate of disciplinary
proceedings.
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17] In the instant case report of enquiry was submitted to
disciplinary authority, it was placed before the Board on
6.7.2005 and the Board of Governors disagreed with the
findings recorded by learned enquiry officer. On 20.7.2005, show
cause notice was issued to the petitioner. In this show cause
notice reasons for disagreeing with the findings of learned enquiry
officer, were summarized, thus :
"(a) No cognizance has been taken by the
Enquiry Officer of the written complaints
Exh.C-3 and C-4 in the entire report and
instead motives have been imputed to the
complaint of Shri Biswas without any
evidence / documents on record to warrant this
conclusion.
(b) The conclusion of the Enquiry Officer that
Shri Malay Biswas was vindictive is not
acceptable since it is based merely on your
statement and is not substantiated by any
evidence.
(c) The Enquiry Officer has totally ignored the
testimony of Dr. N.V. Deshpande and the
minutes of Grievance Committee (Exh.C-6).
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(d) The Enquiry Officer has stressed more on
the purported lack of "finality to the order of
punishment based on the previous incident"
instead of considering in totality the evidence
presented by the Institute on the present
charges.
(e) It is clear that the learned Enquiry Officer
has been selective in his choice of evidence to
discuss in the report and has not taken proper
cognizance of the documents placed on
record."
18] Regarding reasons (a), (b), (c), and (e), we have discussed
supra that complaints C-3 and C-4 were of no use to the institute
in absence of evidence of Shri Rajesh Rentapalli and Shri Saurav
Kumar. Both the complainants were kept away from the witness
box and so complaints C-3 and C-4 remained unproved.
19] In this connection, learned counsel Shri Anand Parchure
for the respondent submits that complaints C-3 and C-4 have
been proved by Dr. N.V. Deshpande and learned enquiry officer
ought not to have ignored the same. We are aware that the strict
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rules of evidence are not applicable to the departmental
proceedings. At the same time, it cannot be overlooked that
contents of a document are required to be proved by the author of
document as he is the best witness to prove the contents.
Dr. N.V. Deshpande simply refers that complaints C-3 and C-4
were submitted by Shri Rajesh Rentapalli and Shri Saurav Kumar.
He does not speak of contents therein. In this background,
learned enquiry officer rightly kept complaints C-3 and C-4 out of
consideration. We, therefore, find reasons (a) and (c), in show
cause notice, unsustainable and unacceptable being contrary to
the spirit of law.
20] In respect to reason (b), we have elaborately considered
the evidence of Shri Malay Biswas and admissions elicited in his
cross examination clearly indicating a strong motive to implicate
the petitioner. We do not find any perversity, illegality or
incorrectness in the reasons recoded by learned enquiry officer.
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We also do not find any substance in the submission of learned
counsel for the respondent that reliance should have been placed
on the evidence of Dr. N.V. Deshpande and complaints C-3 and
C-4 ought to have been considered by learned enquiry officer.
21] So far as reason (d) is concerned, in our opinion,
previous record would have been relevant to the extent of
imposing punishment, in case the delinquent is held guilty and the
charges levelled against him are proved. The last reason i.e. (e),
is general in nature and vague. In this situation none of the
reasons stated to disagree with the findings of learned Enquiry
Officer would sustain.
22] In this connection learned counsel Shri D.V. Chauhan for
the petitioner submits that it is a case of no evidence and placed
reliance on the decision of this Court in Vasant Narayan Damle
vs the Honourable Chief Justice, High Court of Judicature at
Mumbai and others (2002 SCC Bom. 1394). This was a case of
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total absence of any legal evidence and so relying upon the
decision of the Honourable Supreme Court in High Court of
Judicature at Bombay vs Shashikant S. Patil, it was held that
interference by the writ bench was warranted. In the present case
also there was no legal evidence against the petitioner to prove
the charges and so learned enquiry officer came to the conclusion
and rightly so that the charges levelled against the petitioner were
not proved.
23] We have carefully considered the reasons summarized by
the disciplinary authority in show cause notice for disagreeing with
the findings recorded by learned enquiry officer. On going through
the record and material, placed during the course of enquiry, we
find that the submissions urged on behalf of respondent and
reasons (a) to (e) in show cause notice need to be rejected.
24] It was then contended by learned counsel for petitioner
that disciplinary authority, which had disagreed with the findings
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recorded by learned enquiry officer and had held that the charges
levelled against the petitioner were proved, had acted in violation
of the principles of natural justice as an opportunity of hearing, at
the stage when the disciplinary authority developed inclination that
the findings recorded by learned enquiry officer were not
acceptable and were liable to be reversed, was denied to him.
Learned Counsel submitted that the findings recorded by learned
enquiry officer, which were based essentially on an appreciation of
evidence recorded by him were considered by the disciplinary
authority in the absence of petitioner without any notice to him and
the disciplinary authority on an appraisal of evidence, came to the
conclusion that the charges levelled against the petitioner were
established. The disciplinary authority having taken a decision
proceeded thereafter to issue a notice to the petitioner to show
cause why major penalty of removal from service, which shall not
be a disqualification for future employment, be imposed upon
him. Petitioner submits that the disciplinary authority had already
made up its mind and it was only in respect of the proposed
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punishment that a notice was issued to the petitioner. Petitioner
submitted that an adequate opportunity of hearing, which should
have been afforded to him before taking decision on reappraisal of
evidence that he was guilty of charges levelled against him, was
required to be given to him and since the same was denied, there
was violation of the principles of natural justice. In support
thereof, learned counsel placed reliance on the decision of the
Honourable Apex Court in Yoginath D. Bagde vs State of
Maharashtra and another, (1999) 7 SCC 739). In paragraph 23,
the Honourable Supreme Court observed, thus:
"It was contended by learned counsel for the
appellant that the Disciplinary Committee,
which had disagreed with the findings
recorded by the enquiry officer and had held
that the charges against the appellant were
proved, had acted in violation of the
"principles of natural justice" inasmuch it did
not give an opportunity of hearing at the
stage when it developed the inclination that
the findings recorded by the enquiry officer
were not acceptable and were liable to be
reversed. It was further contended that the
findings of the enquiry officer, which were
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based essentially on an appreciation of the
evidence recorded by him were considered
by the Disciplinary Committee in the
absence of the appellant without any notice
to him and the disciplinary authority on a
reappraisal of the evidence came to the
conclusion that the charges against the
appellant were established. The Disciplinary
committee thus having taken a decision,
proceeded thereafter to issue a notice to the
appellant to show cause why he should not
be dismissed from service and a
recommendation to that effect be not made
to the Governor. It was also contended that
the Disciplinary committee had already
made up its mind and it was only in respect
of the proposed punishment that a notice
was issued to the appellant. Consequently,
the appellant, it is contended, was denied
an adequate opportunity of hearing which
should have been afforded to him before
taking a decision that he was guilty of the
charges levelled against him."
25] The facts before the Honourable Supreme Court in
Yoginath Bagde's case (supra) were almost identical. The only
difference was that a judicial officer therein was governed by the
Maharashtra Civil Services (Disciplinary and Appeal) Rules and in
the present case, petitioner is governed by the CCS and (CCA),
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Rules which are in pari materia with the Maharashtra Civil
Services Rules.
26] In present matter, the DA a governing body consisting of
several persons & as stated above they, have issued a notice to
the CO on quantum of punishment while exercising their right to
differ with the findings of IO. The opportunity to show cause is no
doubt, given to the CO, but then as the same is in backdrop of the
punishment already decided to be imposed on him. The DA ought
to have first given him an opportunity to justify the findings of the
IO or to rebut its reasons for differing with the findings of IO.
Thereafter only it could have recorded finally its finding on
acceptance or rejection of the said report of IO. First it ought to
have rejected such explanation of CO & thereafter only it could
have deliberated on the proposed punishment. Having decided the
quantum of punishment before hand, there was no point in calling
the explanation of CO on its reasons for not agreeing with the
findings of IO. The DA has nowhere used the words "tentative" or
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"prima-facie" to demonstrate that its deliberation were not final.
The procedure followed here is faulty & vitiates the punishment
order.
27] Scope of scrutiny by us in this writ petition is restricted to the
tentative reasons or reasons of the disagreement. There is no
question of DA pointing out new reasons or additional material to
assail the report of IO. The respondents or DA in this case has not
taken any such stance. Thus if the reasons dug out by the DA are
bad, the writ petition has to be allowed. There is no question of DA
being extended second chance to consider the report of IO to find
out whether it can give certain other or better reasons to justify its
disagreement. Rightly, the respondent employer has not sought
any leave from this Court to enable the DA to again evaluate the
Inquiry report.
28] It is settled proposition that when the disciplinary inquiry is
held vitiated, the employer is to be given an opportunity to proceed
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further with it after curing the lacuna ie from the stage of defect.
We, here, find that there is no point in remanding the matter back
to the DA. We have found the reasons of DA to disagree with the
report of IO itself bad & unsustainable. We have also held that the
report of IO is without any error. Moreover, the Petitioner CO has
already superannuated long back. Such an opportunity would
have been warranted if the reasons gathered by the DA for its
disagreement with the IO were legally viable. In present facts, the
writ petition deserves to be disposed of finally by this Court.
29] Petitioner has claimed back wages on reinstatement. No
submissions on back wages were made by parties in the course of
arguments. In view of this, so far as back wages are concerned,
we find that grant of 50% back wages to the petitioner would meet
the ends of justice.
30] In the above premise we allow the writ petition and set aside
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impugned communication-cum-order dated 30.8.2005 passed by
the Board. The petitioner shall be deemed to have been
reinstated in service, till his superannuation with all consequential
benefits including 50% back wages which shall be paid to him,
within a period of four months. There shall be no order as to
costs.
JUDGE JUDGE
Deshmukh / !! BRW !!
