Dr. (Prof.) Rosario Pascoal D ... vs State Of Maharashtra Through The ...
2017 Latest Caselaw 4639 Bom

                                                          6-WP-9720-2016.DOC




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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


                    WRIT PETITION NO. 9720 OF 2016


 1. Dr. (Prof) Rosario Pascoal D'Souza
 Age 50 Yrs., Occ. Service, R/at. Gloria,
 112, 'D' Ward, Subhash Lane, At & Post
 Ajara, Tal. Ajara, Dist. Kolhapur - 416 505.                 ...Petitioner

         Versus

 1. State of Maharashtra
 Through its Secretary, Medical Education
 & Drugs Department, Mantralaya,
 Mumbai 400 032.
 2. Maharashtra University of Health
 Sciences,
 Dindori Road, Mhasrul, Nashik 422 004.
 3. The Registrar,
 Maharashtra     University  of   Health
 Sciences, Nashik, Dindori Road, Mhasrul,
 Nashik - 422 004.
 4. Disha Shikshan-V-Vikas Kendra,
 Gadhinglaj, Having its Office at, Plot No.
 P-19, MIDC, At/ Post., Badyachiwadi, Tal.
 Gadhinglaj, Dist. Kolhapur.
 5. E.B. Gadkari Homoeopathic Medical
 College and Hospital,
 Plot    No.    P-19,   MiDc,  At/Post:
 Badyachiwadi, Tal Gadhinglaj,
 Dist. Kolhapur                         ...Respondents


 Mr. Prashant Bhavake, Adv. for the Petitioner.


                                Page 1 of 11
                               18th July 2017


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 Mr. B.V. Samant, AGP for Respondent No.1.
 Mr. R.V. Govilkar, Adv. for Respondents Nos. 2 and 3.
 Mr. U.H. Pawar, Adv. for Respondents Nos. 4 & 5.

                               CORAM:        B.R. GAVAI AND
                                             RIYAZ I. CHAGLA, JJ.

                               DATED:        18th July 2017
 PC:-


 J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. Rule. Rule made returnable forthwith. Heard by

consent.

2. The Petitioner by the present Petition is challenging the

impugned order dated 28th March 2016 passed by

Respondent No.2 and signed by Respondent No.3 cancelling

the approval granted for the appointment of the Petitioner in

for post of 'Professor' for five years.

3. The Petitioner is an MD (Homoeopathy) by

qualification. The Petitioner was appointed in the post of

Demonstrator at Respondent No.5 medical college on 1st

December 1991. Thereafter the Petitioner was appointed as

lecturer on 1st June 1994 and as Reader on 1st July 1998

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and Professor on 30th March 1994. By an order dated 30th

March 2004, Respondent No.4 Educational Institution

appointed the Petitioner as Principal of Respondent No.5.

Respondent No.2 granted approval to the appointment of the

Petitioner in the post of Professor of Anatomy on 25th June

2004. On 5th November 2004, the Respondent University

granted approval for appointment of Petitioner in the post of

Principal.

4. A complaint came to be submitted by one ex-student of

Respondent No.5 college against the Petitioner with the

Respondent University. The Petitioner was informed of the

complaint by the Respondent University and the complaint

was submitted by one Reena Dadasaheb Nangre, ('the

complainant') who had completed her BHMS Education in the

year 2010. The Petitioner was informed that a hearing was

arranged on 30th September 2015 at the Head Quarters of

the Respondent University and the Petitioner was informed to

remain present. The Petitioner pursuant to the notice

appeared before Respondent No.3 and submitted his written

submissions and denied the allegations made in the

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complaint. Since the complainant was not present at the

hearing, the Respondent University adjourned the hearing.

The Respondent University fixed the hearing for alternate

dates but the Petitioner was unable to attend the hearing. The

Petitioner was informed by the Respondent University to give

the Internship Completion Certificate to the complainant and

that if the Internship Completion Certificate of the

complainant was not issued, its duplicate Internship

Completion Certificate will be issued directly by the University

to the complainant. On 4th November 2015, the Petitioner

claims to have by speed post and mail sent letter to

complainant and asked her to collect her Internship

Completion Certificate within seven days from the college.

The Respondent University by letter-cum-notice asked the

Petitioner to remain present for hearing on 16th November

2015. The Petitioner attended hearing and submitted written

submissions before Respondents Nos. 2 and 3. The

Petitioner claims to have submitted the requisite documents

and the University gave acknowledgement of receipt.

Respondent University issued letter-cum-show cause notice

dated 15th December 2015, as to why the approval granted

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for appointment of the Petitioner in the post of "Principal" vide

order dated 5th November 2004, should not be cancelled for

five years. The Petitioner gave a detailed reply to the show

cause notice and requested the Respondent University to

withdraw the notice and not to take action against the

Petitioner.

5. On 2nd April 2006, the Petitioner received the

impugned order dated 28th March 2016, signed by

Respondent No.3, informing the Petitioner that in view of

University Direction No. 2 / 2014, the approval granted for

appointment of the Petitioner in the post of "Professor" vide

order dated 5th November 2004 is cancelled for five years

with retrospective effect from 25th February 2016.

6. The Petitioner being aggrieved by impugned order has

filed the present Petition.

7. Shri Bhavake, learned Advocate for the Petitioner has

submitted that the show cause notice and impugned order

are both issued in violation of the principles of natural justice

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and no proper opportunity was granted to the Petitioner to

defend charges levied in the show cause notice. Shri

Bhavake has submitted that after giving show cause notice,

the Respondents Nos. 2 and 3 had not granted opportunity of

hearing to the Petitioner and straight away passed impugned

order. Shri Bhavake contended that Respondents Nos. 2 and

3 had not served the complaint to the Petitioner prior to

passing of the impugned order and this was clearly in breach

of principles of natural justice. Shri Bhavake has submitted

that the Petitioner had flatly denied all allegations in the show

cause notice, in both his written submissions / explanations.

Shri Bhavake submitted that the show cause notice was

given in respect of the proposed action of cancelling approval

granted to the post "Principal" but the impugned order had

gone contrary to the show cause notice and cancelled the

approval granted to the Petitioner to the post of "Professor".

Shri Bhavake contended that the impugned order has been

passed without application of mind and hence the same is

required to be quashed and set aside.

8. Shri Bhavake has also contended that the impugned

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order has been issued contrary to the University Direction

No.2 / 2014. Clause 10.3 of Direction No. 2 / 2014 provides

thus:-

"If any Teacher or Principal / Dean / Director of the affiliated college / recognized institute creates obstacle in the smooth functioning of the University or any authority or committee of the University or if any Principal / Dean / Director of the affiliated College / recognised Institute has not permitted any Teacher to perform the duties allotted by the University, without any reason, in such circumstances, the Vice Chancellor may freeze, cease the approval granted to the appointment of the concerned Teacher / Principal / Dean / Director of the affiliated College and recognised institute for such a period as he deems fit which extend to 5 years".

9. Shri Bhavake has contended that the allegations in the

show cause notice dated 15th December 2015 does not meet

with the above directions for freezing or ceasing of approval /

recognition granted by the University. The impugned order

passed relying upon said provision is unwarranted and has

been issued without considering the applicability of the above

direction.

10. Shri Govilkar, learned counsel for the Respondents

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Nos. 2 and 3 submitted that the video in the CD produced by

complainant is relied upon by the Respondents Nos. 2 and 3

to show that the Petitioner had demanded the said sum of

Rs. 50,000/- from the complainant and had in that manner

created obstacles for the smooth functioning of University by

claiming that he could "manage" University officers and

employees for issuing the University's Internship Completion

Certificate. Shri Govilkar has claimed that the video in the

CD clearly shows the Petitioner making such demands on the

complainant and his conduct has been taken into

consideration by Respondents Nos. 2 and 3 in passing the

impugned order. Shri Govilkar has submitted that the

Petitioner has not bothered to attend the previous hearings

which the University had fixed and Respondent No.2 had to

fix a fourth hearing of the Petitioner, which the Petitioner had

attended. Shri Govilkar has contended that at the said

hearing, the Petitioner himself had admitted the contents of

the Video in the CD and had stated that he was present in the

video. The Petitioner has unable to give satisfactory answers

to the question asked to him on the basis of conversation in

the video. Shri Govilkar has submitted that the due to

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misconduct of the Petitioner his approval granted to the post

of "Professor" is cancelled for five years w.e.f. 25th February

2016 and the said decision had been conveyed to the

Petitioner vide letter dated 20th March 2016.

11. Shri Bhavake has submitted that the CD relied upon by

the complainant had not been given to the Petitioner. Shri

Bhavake has tendered a transcript of the contents of the CD,

and submitted that the charges which Shri Govilkar has

contended has not been borne out from the CD. The

complaint which has been lodged against the Petitioner for

having asked to complainant to pay sum of Rs.50,000/- to

"manage" the University officers and employees for issuing

University's Internship Completion Certificate also does not

appear in Video in the CD.

12. After hearing the arguments, we are of the considered

view that the show cause notice has not given sufficient

particulars of the offence which the Petitioner is alleged to

have committed. We are of the view that the show cause

notice is in fact contrary to the impugned order, in that by the

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show cause notice the Petitioner was asked to show cause

as to why the appointment of the Petitioner to the post of

"Principal" should not be cancelled for five years, but in the

impugned order the approval granted to the Petitioner to the

post of "Professor" is cancelled for five years with

retrospective effect from 25th February 2016. We are of the

considered view that the transcript of the video contained in

the CD also does not bear out the charges alleged levied by

Respondents Nos. 2 and 3 against the Petitioner. We are of

the considered view that the Petitioner has not been given a

proper opportunity of hearing by Respondents Nos. 2 and 3

prior to passing of the impugned order. We are of the

considered view that the impugned order by cancelling the

approval / recognition granted by the University for

appointment of the Petitioner to the post of "Professor" is

contrary to clause 10.3 of University Direction No.2 / 2014.

13. We accordingly allowed the Petition with the

following order:

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ORDER

(a) Rule is made absolute in terms of prayer clause

(b).

(b) However, it is made clear that if the Respondent

University desires to take any action against the

Petitioner, same can be taken only after the

Respondent University follows the principles of

natural justice.

(c) The Writ Petition is disposed off in the above

terms.

       (RIYAZ I. CHAGLA J.)                        ( B.R. GAVAI J.)





                                 18th July 2017