Smt.Kunda W/O Sharad Pande vs Amar Seva Mandal,Nagpur And 3 ...
2016 Latest Caselaw 3169 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                     
                         NAGPUR BENCH, NAGPUR
                                             WRIT PETITION No.203 OF 2003




                                                                                                    
    Smt. Kunda w/o Sharad Pande,
    Aged about 56 years, 
    Occupation : Presntly NIL
    R/o Keshavkunj, 51A, Kharetown, 




                                                                              
    Barlinge Road, Dharampeth,
    Nagpur.                       ...              ig                                                                 ...          Petitioner.

                                                ..Versus..
                                               
    1.      Amar Seva Mandal, Nagpur.
            Through its President, Kamla Nehru
            Mahavidyalaya, Sakkardara Chowk, 
            Nagpur. 
       


    2.       Nagpur University, Nagpur,
    



             Through its Registrar. 

    3.       The Principal, Kamla Nehru Mahavidyalaya,
             Sakkardara Chowk, Nagpur. 





    4.  The Presiding Officer,
        University & College Tribunal, 
        Nagpur University, Nagpur.  ...                                                                               ...    Respondents.
    .......................................................................................................................................................

Mr. M.M. Sudame, advocate for petitioner.

Mr. B.G. Kulkarni, Advocate for respondent nos. 1 & 3. .......................................................................................................................................................

CORAM : A.S. CHANDURKAR, J.

DATED : 23 rd JUNE, 2016.

ORAL JUDGMENT.

The petitioner is aggrieved by the order dated 13.08.2001

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passed by the learned Presiding Officer, University and College Tribunal,

Nagpur, thereby dismissing the appeal preferred by the petitioner under

Section 59 of the Maharashtra Universities Act, 1994 and upholding the

order dated 9.2.2001 by which the petitioner was removed from service.

2. The petitioner was initially appointed as a contributory

lecturer with the respondent no. 3 College that was run by respondent no.1

Society. On 31.7.1985 she became a full time lecturer in the subject of

History. During the course of her service a charge sheet was issued to her

on 4.12.1992 levelling various charges against her. The petitioner denied

the said charges. Thereafter, the management appointed an inquiry officer

who conducted the inquiry. An inquiry report dated 7.6.1996 was

submitted by the inquiry officer and on 18.9.1996 the petitioner was asked

to submit her explanation on the conclusions made in the inquiry report. As

the explanation of the petitioner was not found satisfactory, a further show

cause notice dated 4.7.1997 was issued to petitioner as to why she should

not be removed from service by way of punishment. On 4.11.2000, the

respondent no. 2 University granted permission to terminate the services of

the petitioner. On that basis a resolution came to be passed by the

Management and on 9.2.2001 the petitioner was inflicted with the

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punishment of removal from service. Being aggrieved, the petitioner filed

an appeal before the University and College Tribunal and by the impugned

judgment the said appeal has been dismissed.

3. Shri M.M. Sudame, the learned counsel for the petitioner,

submitted that the Tribunal was not justified in upholding the action of the

management of imposing the punishment of removal upon the petitioner.

He submitted that the charges in question pertained to the year 1987 while

the charge sheet was issued in the year 1996. He submitted that though the

inquiry officer concluded that some of the charges had been duly proved,

the evidence in that regard was not sufficient. According to him, the

proceedings in the departmental inquiry were quasi criminal in nature and

therefore the burden of proof on the Management was on higher side. In

that regard, he placed reliance upon the judgment of Hon'ble Supreme

Court reported in (2006) 4 SCC 713 (Narinder Mohan Arya Vs. United

India Insurance Co. Ltd., and others). It was submitted that in so far as

charge no. 2 is concerned, the staff member who was alleged to have been

abused by the petitioner was not examined and therefore this charge could

not be held to be proved. It was urged that even if all the charges as

proved are taken together, the punishment imposed of removal from

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service was harsh and disproportionate in the facts of the present case. He

submitted that the petitioner was in service for almost 15 years and had

now reached to age of superannuation. He, therefore, submitted without

prejudice to his submissions that the punishment of removal deserves to be

modified to a lesser punishment.

4. Shri B.G. Kulkarni, the learned counsel for the respondent nos.

1 & 3 supported the impugned judgment. According to him, after following

the entire procedure as prescribed, the inquiry had been held and the

petitioner had been removed from service. Due opportunity had been

granted to the petitioner and the inquiry officer after considering the entire

evidence rightly held the charges to be proved. He submitted that this

Court cannot as an Appellate Authority re-examine the correctness of the

findings recorded in the inquiry proceedings. With regard to charge no. 2,

he submitted that the staff member in question had been abused in

presence of other staff members who had been duly examined and hence

that charge was also proved. He, therefore, submitted that the Tribunal

considered the entire matter and thereafter did not grant any relief to the

petitioner. Without prejudice to the aforesaid, he submitted that in case it is

found that the punishment imposed on the petitioner is harsh and

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disproportionate, a fresh decision with regard to imposition of punishment

has to be taken by the disciplinary authority and it would not be

permissible for this Court to substitute the punishment inflicted by the

Disciplinary Authority. In that regard he placed reliance on the decision in

Kailash Nath Gupta Vs. Enquiry Officer (R.K.Rai) Allahabad Bank and

Others reported in (2003) 9 SCC 480.

5. I have heard the learned counsel for the parties and I have

also perused the documents placed on record. I have given due

consideration to their respective submissions. It is to be noted that the

services of the petitioner have been terminated by imposing punishment

after holding inquiry. The inquiry proceedings are not under challenge on

the ground that sufficient opportunity was not given to the petitioner to

meet the charges against her. In her presence about 36 meetings of the

inquiry proceedings were held. If it is found on the basis of material on

record that the charges in question have been sufficiently proved by

leading evidence, then this Court would be slow to interfere with such

findings of the inquiry officer. It is not in dispute as held by the Hon'ble

Supreme Court in Narendra Mohan Arya (supra) that departmental

proceedings are quasi criminal in nature and therefore the degree of proof

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would attain importance.

6. In the inquiry proceeding about six charges have been held to

be proved; while six charges have been held to be not proved. Amongst

aforesaid charges, charge no. 2 relates to the petitioner insulting one Smt.

Meshram in the staff room. To prove this charge, the Management has

examined other staff members who were present at that point of time and

on that basis it was held that this fact was proved. The staff member who

was abused was not examined. This charge was proved by examining other

staff members. The behaviour of the petitioner was found unbecoming for

the post of lecturer held by her. The other charges levelled against the

petitioner were with regard to not representing the interests of the

Management in the proper perspective and entering into quarrels with the

other staff on unnecessary grounds.

7. Perusal of the various charges on which inquiry was held and

which have been held to be proved indicates that the same did not directly

relate to unsatisfactory discharge of her duties as a Lecturer. Nature of

these charges cannot be said to be so serious that would have affected the

performance of the petitioner as lecturer. There is no such charge to that

effect.

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8. In this background, therefore, if the penalty imposed upon the

petitioner of removal from service is considered, the same appears to be

harsh and disproportionate to the conduct of the petitioner. The fact that

the petitioner had served for about 16 years, that the charges pertaining to

the year 1987 were sought to be inquired in the year 1992, the petitioner

being kept under suspension from 21.10.1992 after which she was removed

from service on 9.3.2001 are all relevant factors that are required to be

kept in mind.

9. As noted above, the charges proved are not directly connected

with the duty of the petitioner of imparting education as a lecturer. The

petitioner has now superannuated and hence, there would be no occasion

of she coming back to the college. In the light of these facts and

considering the nature of charges against the petitioner, I find that the

punishment of removal from service is harsh and disproportionate to the

misconduct in question. By following the course as held by the Hon'ble

Supreme Court in Kailash Nath Gupta (supra), the disciplinary authority

can be directed to reconsider the punishment of removal from service and

substitute the same by an appropriate punishment in the facts of the case

would serve the interests of justice in the facts of the present case.

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9. In the light of aforesaid conclusion the following order is

passed :

(i) The order dated 13.8.2001 passed by the University and

College Tribunal in Appeal No. N-10/2001 is partly modified.

(ii) While the findings recorded in the inquiry proceedings are

upheld, the matter is remitted to the Disciplinary Authority-respondent

no.1 for imposing appropriate punishment in the light of observations made

herein above. The respondent no.1 shall also consider the manner in which

the period of suspension from 21.10.1992 till 9.2.2001 shall be treated.

(iii) Necessary decision in that regard be taken within period of

four weeks from today.

(iii) The writ petition is disposed of in above terms with no order

as to costs.

JUDGE

Hirekhan

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