Bombay High Court
Dr.Tryambak Mahadeo Karade & Anr vs The Nag.Uni.Thr. Regtr. & 2 Ors on 21 December, 2017
Bench: B.P. Dharmadhikari
1 WP.2749.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2749 OF 2002.
1] Dr. Tryambak s/o Mahadeo
Karade, aged about 61 years,
Occ. Retired, 187, Gokulpeth,
Nagpur,
2] Dr. Jagatpalsingh s/o Gopalsingh
Chavan, aged about 61 years,
Occupation Retired, Resident of
A-9, University Teachers Quarters,
Amravati Road, Nagpur. ..... PETITIONERS.
....Versus....
1] Nagpur University, Nagpur,
through its Registrar,
2] The Hon'ble Vice-Chancellor,
Nagpur University, Nagpur.
3] The Hon'ble Chancellor,
Malabar Hills, Raj Bhawan,
Mumbai. ...... RESPONDENTS.
Mr. K.P. Marpakwar, Advocate for petitioners.
Mr. Bhuibhar, Advocate for respondent nos. 1 & 2.
Ms. M.A. Barabde, A.G.P. for respondent no. 3.
CORAM : B.P. DHARMADHIKARI & MRS. SWAPNA S. JOSHI, JJ.
DATED : DECEMBER 21, 2017.
2 WP.2749.02
B.P. DHARMADHIKARI
ORAL JUDGMENT (PER , J.)
1] Heard the learned Counsel for the respective parties.
2] Two petitioners now above 75 years of their age having
excellent academic record are before this Court assailing the order of
punishment issued by respondent no.2 Vice-Chancellor withholding
30% of pension payable to them upon superannuation. This appears
to be the only misconduct in their entire service career.
3] Mr. K.P. Marpakwar, learned Advocate for petitioners,
submits that the Maharashtra Civil Services (Pension) Rules, 1982
have been adopted by the respondent no.1 University in 2009 and
hence, prior to that after reaching age of superannuation,
departmental enquiry needed to be dropped. His second contention
is in view of Ordinance No. 122 framed under Nagpur University Act,
1974, the Management Council is the Disciplinary Authority and
hence, the impugned order of punishment dated 23.5.2002 passed by
respondent no.2 Vice-Chancellor is without jurisdiction. He also
states that findings recorded by Enquiry Officer are perverse,
inasmuch statements of concerned girl students expressly
exonerating petitioners and claiming that their signatures were
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obtained later on has been overlooked by respondent no.2. It is
pointed out that enquiry report was submitted on 13.11.1996 and final
show-cause notice has been issued on 31.12.2001, i.e. almost after
five years. In the meanwhile, petitioners have superannuated. It is
submitted that the authority issuing final show-cause notice has not
appropriately considered reply submitted by petitioners on enquiry
report and, therefore, order is unsustainable. Lastly, he states that
from 2001 till today for last 17 years, petitioners have suffered
enough humiliation and hence, the punishment should be quashed
and set aside.
4] Mr. Bhuibhar, learned Advocate for respondent nos. 1 & 2,
relies upon provisions of Section 14(9) read with Section 115(2)(xii) of
the Universities Act to urge that statute/ordinance of Nagpur
University containing a stipulation contrary to one in Section 14(9)
cannot stand and Vice-Chancellor is the Appointing and Disciplinary
Authority. He further states that as punishment has been imposed
after disciplinary enquiry, the scope available to this Court is limited
and as enquiry is fair and valid and findings are not perverse,
quantum of punishment being in the domain of employer cannot be
interfered with. He also adds that there is no express challenge to
continuation of departmental enquiry after superannuation and even
4 WP.2749.02
before 2009 pension was the condition of service and has been paid
according to Maharashtra Civil Services (Pension) Rules, 1982 only.
He, therefore, prays for dismissal of Writ Petition.
5] Ms. Barabde, learned A.G.P. appearing for respondent
no.3 supports arguments of Mr. Bhuibhar, learned Advocate for
respondent nos. 1 & 2.
6] The contention that Maharashtra Civil Services (Pension)
Rules, 1982 have been adopted in 2009 and hence, employer before
that did not possess power to continue with departmental enquiry
after superannuation or then impose a punishment deducting or
withholding pension, has not been specifically urged and as such,
respondent nos. 1 & 2 did no get opportunity to bring on record
necessary facts. But then order of punishment itself shows that
pension was/is the condition of service and respondent no.2 has in
punishment order expressly pointed out this aspect. He has also
concluded that, therefore, he possessed power to deduct pension or
withholding part of pension. In absence of specific challenge to these
findings, in this jurisdiction and at this stage, we are not inclined to
examine correctness of contention of Mr. Marpakwar, learned
Advocate for petitioners.
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7] The provisions of Ordinance No. 122 framed under Nagpur
University Act, 1974 show Executive Council as the Disciplinary
Authority. Said Executive Council has now been termed as
Management Council. However, after coming into force of
Maharashtra Universities Act, 1994 above-mentioned 1974 Act has
been repealed. Section 14(9) of 1994 Act expressly stipulates Vice-
Chancellor to be the Appointing Authority and Disciplinary Authority
for all University teachers. In the face of this specific stipulation, the
contention that Vice-Chancellor is not the Appointing Authority or
Disciplinary Authority and under 1994 Act Management Council
should be treated as such authority cannot be accepted. As rightly
pointed out by learned Counsel on behalf of respondent nos. 1 & 2,
provisions of Section 115(2)(xii) also accordingly lay down that
statutes or ordinances to the extent they are not inconsistent with
provisions of 1994 Act can only continue to apply. Here, stipulation in
earlier Ordinance No. 122 runs contrary to statutory provisions in
Section 14(9) of 1994 Act. The reliance upon Ordinance No. 122,
therefore, is erroneous and unsustainable.
8] Perusal of charge-sheet reveals that all charges revolve
around visit for inspection of petitioners to examination center and the
search of girl students at that center. It is mentioned that petitioners
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asked girl students to lift their Kurta to an indecent height for finding
out whether they are using any unfair means or copying material.
There are total four charges but all revolve around this incident only.
Petitioners have in their reply to charge-sheet denied any such
incident. Girl students were examined during departmental enquiry
and enquiry was conducted by a Retired Judge of this Court. The girl
students have in enquiry expressly stated that nothing of this sort took
place and there was no such untoward incident. The staff entrusted
with duty of vigilance during examination has also been examined.
This staff was not the staff of University or then staff of the center
where the examination was conducted. They were arranged privately
by one Shri Muley, who was center incharge. These invigilators have
submitted that checking squad which consisted of about four persons
checked boys and girls both.
9] From depositions and material on record, it appears that if
there was any such direction to girl students to lift Kurtas, nobody
objected to it and everything passed of peacefully. If statement of girl
students is to be accepted, there was no such direction.
10] Mr. K.P. Marpakwar, learned Advocate for petitioners, has
tried to demonstrate before us that as center in-charge Shri Muley
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was not present when inspecting squad visited center, after his return
he was scolded and he fabricated a false story. Girl students accept
that their signatures were obtained by Shri Muley later on and one of
them has also lamented for signing a wrong thing. One student also
deposed that she only wears Sari and never uses Kurta.
11] Though Mr. K.P. Marpakwar, learned Advocate for
petitioners, has also attempted to demonstrate that relations with Shri
Muley were strained and, therefore, everything happened, in present
matter we do not find it necessary to delve more into it because no
such suggestions are put to any witness during his cross-examination
by Counsel representing the petitioners in departmental enquiry.
12] The Enquiry Officer has submitted his report holding that
some incident has happened at the center. Petitioners have
submitted their explanation to this report and pointed out their
defence. This explanation submitted by them on 31.3.1997 remained
pending because a Writ Petition was filed vide Writ Petition No.
860/97 by petitioners and that Writ Petition was decided by this Court
on 6.6.2001. After that decision, the Vice-Chancellor on 31.12.2001
has passed the impugned order. This order mentions show-cause
notice regarding imposing of punishment pursuant to enquiry. The
8 WP.2749.02
order also shows that after receipt of enquiry report a show-cause
notice dated 13.11.1996 was issued to petitioners calling upon them
to submit explanation on findings of Enquiry Officer and reply thereto
was submitted on 31.3.1997. Thus, in terms of judgment of Hon'ble
Apex Court in the case of Union of India & others .vs. Mohd.
Ramzan Khan reported at AIR 1991 S.C. 471 and Constitution
Bench judgment in the case of Managing Director, ECIL,
Hyderabad and others .vs. B. Karunakar & others reported at
(1993) 4 SCC 727, the procedure has been followed. However,
thereafter a show-cause notice on quantum of punishment has been
issued on 31.12.2001. Evaluation of reply of petitioners on enquiry
report is contained in a short paragraph in final order. The Punishing
Authority mentions that after considering findings recorded by Enquiry
Officer and explanation submitted by petitioners challenging those
findings, it has come to conclusion that findings recorded by Enquiry
Officer are well-founded and are supported by evidence recorded in
the enquiry proceedings. Thus, the fact that girl students themselves
exonerated petitioners has not been expressly looked into.
13] The enquiry report in paragraph 29 records a finding that
physical examination was done in presence of all other candidates
and this constituted a grave misconduct. According to the Enquiry
9 WP.2749.02
Officer, this is the second charge in the charge-sheet. Perusal of
second charge does not reveal that actually any physical examination
was undertaken by petitioners or by anybody of any girl student. In
fact, there is no such charge of conducting physical examination of
girl students in examination hall at all.
14] We in this situation are not in a position to sustain the
order of punishment. In any case, petitioners have suffered for
almost 22 years from the date of visit to center, i.e. on 3.11.1995 and
they have been punished more than 17 years back.
15] We, therefore, quash and set aside the order of
punishment and direct respondent no.1 to release their deducted/
withheld pension with necessary arrears within six months from
today. If it is not so released, it shall carry interest @ 8% thereafter
and in that event interest shall be payable from the date of this
judgment till its realization.
16] Writ Petition is thus partly allowed and disposed of. No
costs.
J. JUDGE. JUDGE.
