Bombay High Court
Shri Dr. Satchidananda Behera ... vs Sant Gadge Baba Amravati ... on 13 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1352 OF 2012
Shri. Dr. Satchidananda Behera,
Aged about - 52 years,
Occ. Service, Sr.Lecturer and
Head, P.G. Department of Physical
Education, Sant Gadge Baba
Amravati University, R/o. 201,
Vimaco Enclaves, Opp. IG Bunglow,
Camp, Amravati ......... .. PETITIONER
// VERSUS //
1 Sant Gadge Baba, Amravati University,
Amravati, Through its Registrar,
having its office at Sant Gadge Baba
Amraati University Campus,
Amravati
2 Registrar,
Sant Gadge Baba,
Amravati University, Amravati
3 Joint Director,
Higher Education,
Amravati Division, Amravati ... RESPONDENTS
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Mr.C.V.Kale, Adv. for the Petitioner.
None for Respondent Nos. 1&2
Mr.A.M.Madiwale, AGP for the Respondent No3.
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CORAM : B.P.DHARMADHIKARI, J.
R.B.DEO, J.
DATE : 13.06.2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J) :
1 Heard Advocate Shri C.V. Kale for petitioner and
learned AGP Shri. Madiwale for respondent no. 3. Nobody
appears for respondent nos. 1 & 2.
2 Vide order dated 17.2.2007, punishment of
witholding next 3 increment permanently and treating
period of suspension of 425 days pending inquiry as
'suspension' and therefore, postponing date of next
increment accordingly has been questioned by petitioner
before this Court. Advocate Shri Kale submits that, as per
clause 49 of Ordinance 122 which prescribes punishment,
suspension is itself a punishment. Thus, suspension order
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dated 22.12.2005 without holding even a preliminary
inquiry and without any opportunity to petitioner is in
breach of principles of natural justice and therefore, void.
3 He further adds that as punishment of suspension was
already imposed, punishment of witholding next 3
increments permanently is unnecessary and in present facts
constitute, double jeopardy.
4 He further submits that composition of Inquiry
Committee was bad in as much as upon objection raised by
petitioner on 7.4.2016, Smt. Jyoti Deshmukh was removed
from Inquiry Committee and substituted by Advocate Shri
Mahalle. However, after refusal of Shri Mahale, Smt.
Deshmukh was reintroduced and thus, Inquiry Committee
as constituted is bad. Hence, all proceedings conducted by
it, its report and consequential punishment is also bad. He
points out that report submitted by Grievance Committee is
not signed by all its members. One Shri S.B. Tidke whose
name finds mention on last page, has not signed the report,
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though, there is space left for him to sign. Our attention is
drawn to examination of Vice Chancellor by Grievance
Committee to urge that while answering question Nos.
3,4,7 & 8, Vice Chancellor communicated that answers to
those questions would be given by Registrar, however,
Registrar never appeared and, therefore, those questions
have remained unanswered. In this situation, when against
order of punishment, petitioner has approached a statutory
forum under Section 57 of Maharashtra Universities Act,
not completing its proceedings as per law by Grievance
Committee or then mechanical acceptance of report of
Grievance Committee by management council, is again
sufficient to vitiate everything.
5 As Smt. Jyoti Deshmukh was having qualification in
law, petitioner had sought legal assistance but it was
declined arbitrarily and high handedly with the result
petitioner could not defend himself effectively.
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6 Inviting attention to previous Ordinance 122, Chapter
8, Clause 47, Advocate Shri Kale points out that inquiry
needed to be completed by Inquiry Committee within six
months. As it has not been completed within six months,
the proceedings conducted thereafter are all nonest. He
submits that after such inquiry, when show cause notice
was served upon petitioner by Disciplinary Authority on
8.12.2006, the nature or quantum of punishment proposed
was not pointed out and thus it is in breach of principles of
natural justice. For all these reasons, Advocate Shri Kale
seeks relief of quashing of order of punishment dated
17.2.2007 with all consequential benefits.
7 Learned AGP is relying upon reply affidavit and states
that it is basically for respondent nos. 1 and 2 to meet the
adverse contentions.
8 Advocate Shri Kale, in reply points out that in its reply
before this Court, respondent no. 3 has pointed out
erroneously that order of suspension has been passed after
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inquiry. Shri Kale also points out that even inquiry report is
not signed by all members of Inquiry Committee.
9 We find that Chapter VIII of Ordinance No. 122 is on
punishment. Clause 49 therein vide sub-clause V prescribes
suspension as punishment. In Service Jurisprudence,
suspension has got three different fassets. Employer can,
by exercising his power as a master, refrain employee from
working and it is not stigmatic. Similarly, in Service Rules,
employer is given power to place employee against whom
Departmental Enquiry is being conducted, under
suspension. The employee in that case is entitled to
substantive allowance as stipulated in such Rules. Last type
of suspension is suspension by way of punishment. In
present matter, perusal of order dated 22.12.2005 shows
that it has been passed in exercise of powers under Section
14(9) of Maharashtra Universities Act,1994 by the Registrar
of University. Thus, it is an interim suspension (pending
inquiry) and hence, it can not be mistaken with punishment
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of suspension provided for in Ordinance No. 122, clause 49,
sub-clause V.
10 Clause 47 of Ordinance 122 stipulates that inqury
shall be completed within period of six months from the
date of suspension. The argument is inquiry, therefore, can
not be continued beyond six months. Similar provisions
appearing in Section 78(1)(D) of Bombay Industrial
Relation Act, 1946 has been construed by Hon'ble Supreme
Court in the case of Municipal Corporation of Greater
Bombay Vs. B.E.S.T. Worker's Union reported in 1973 Mh.
L.J. 461 holding that it is only a directory provision.
Burden has been cast upon employee to show that as
inquiry has not been completed within six months, a
prejudice has been caused to him. Here, petitioner has only
pointed out that inquiry continued beyond six months. No
further arguments in this respect are advanced.
11 In so far as absence of signature of all members of
Inquiry Committee on Inquiry Report is concerned, our
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attention has been drawn to page 60 of the Memo of Writ
Petition. There name of one S. Behara has been written
and below his name, his designation has been recorded as
Presenting Officer. With the result, he is not part of Inquiry
Committee and therefore, he is not supposed to record any
findings after appreciating evidence. His role was only to
present the case of employer before Enquiry Committee.
Smt. Jyoti Deshmukh has signed report in her capacity of
member of Inquiry Committee and similarly Dr. Mudliyar
has also signed as President of Inquiry Committee. Hence,
the submission that Inquiry Report is not signed by all its
members, is erroneous. The other contention is about
absence of signature of member of Grievance Committee.
Again our attention has been drawn to last page of the
report. There, names of total 7 members of Grievance
committee are mentioned. President of Grievance
Committee Shri J.S. Deshpande, its Secretary Shri Dinesh
Joshi have signed the report of Grievance Committee.
Apart from them, 4 members of Grievance Committee
have also placed their signatures. Last member
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or 7th member Shri Tidke does not appear to have signed,
though his name finds mention. Thus, 6 out of 7 committee
members have already signed said report. Hence, mere
absence of signature of Shri Tidke is not fatal and report
can not be discarded on that ground. Moreover, the last
paragraph of report shows that committee has looked into
the report on 30.8.2010 and it was cleared in that meeting.
It is not the case of petitioner that Shri Tidke has not
participated in that meeting or he has opposed the
proceedings or then has supported the case or cause of
petitioner.
12 The Grievance Committee has considered grievance
made by petitioner against order of punishment. The
punishment was inflicted after serving a show cause notice
dated 8.12.2006. The petitioner was expressly informed
that Disciplinary Authority has gone through report of
Inquiry Committee and accepted it. He was thereafter,
called upon to show cause as to why a punishment specified
under Ordinance 122, Chapter VIII, Clause 49 should not
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be inflicted upon him. After judgment of Hon'ble Apex
Court in the case of Union of India & Ors. Vs.Mohd. Ramjan
Khan reported in AIR 1991 SC 471 and Constitution Bench
in case of Managing Director ECIL Hyderabad Vs.
B.Karunakar ect. reported in AIR 1993 SC 1074. It is
settled law that employer is not required to give
opportunity on quantum of punishment to the employee.
As such non-mentioning of a particular punishment in show
cause notice, would not in any way, vitiate either the show
cause notice or the consequential punishment.
13 After acceptance of Inquiry Report by Disciplinary
Authority and on imposition of punishment, proceedings
before Grievance Committee under Section 57 of
Maharashtra Universities Act are in the shape of
departmental appeal.. The members of Grievance
Committee in their wisdom brought it fit to put certain
questions and obtain clarification from him. This course of
action was not open and in any case inability of Vice
Chancellor to answer all questions does not further the
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cause of petitioner in any way. The petitioner has not
claimed right to cross examine Vice Chancellor at that
stage. Answer given by Vice Chancellor are not used to be
prejudice of petitioner. Hence, submission that complete
material was not disclosed to Grievance Committee by
employer is misconceived. Further submission that report
of Grievance Committee was mechanically accepted by
management council is also therefore, erroneous. No such
material allegedly suppressed by employer is brought on
record.
14 In so far as role played by Smt. Jyoti Deshmukh as a
member of Inquiry Committee is concerned, petitioner has
pointed out in his objection that she was only a probationar
and 19 years junior in service than him. In such matters,
such objections are misconceived. Still, it appears that
employer made an effort and substituted her by appointing
Advocate Shri Mahalle as member of Inquiry Committee.
Shri Mahalle did not accept to act as such and therefore,
she was again appointed. It appears from proceedings that
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charges of mis-behaviour, wrong behaviour with students
both male and female were levelled against petitioner. The
presence of a lady member on Inquiry Committee in the
shape of Smt. Deshmukh, therefore, was essential. Not only
this, but when a question was asked to Vice Chancellor by
Grievance Committee as to why she thought it fit to
suspend petitioner pending departmental inquiry, her
answer shows that she was moved by the nature of
misconduct and thought it proper to put petitioner under
suspension.
15 Only presence of undesired member on Inquiry
Committee can not in law, vitiate the inquiry proceeding.
The scope of jurisdiction available to this Court in such
matters and when inquiry can be said to be vitiated is born
from judgment of Hon'ble Apex Court in the case of State
Bank of Patiyala & Ors. Vs. S.K. Sharma, 1996(3)SCC page
364. Present petitioner has to point out not only violation
of statutory provisions but also accompanying prejudice
resulting therefrom in this matter. Here, petitioner has only
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made half hearted efforts to demonstrate some violation
which has not resulted in any prejudice to him and also do
not go to the root of matter. As already held Supra, as
suspension was pending Departmental Enquiry and not a
punishment, argument of double jeopardy is erroneous and
misconceived. Petitioners next 3 increments have been
witheld permanently and date of next increment has been
postponed as period of suspension pending inquiry has
been regularized as suspension only. Nothing wrong has
been demonstrated with this treatment accorded to period
of suspension.
We therefore, find no case made out warranting
interference in extra-ordinary jurisdiction. Accordingly,
writ petition is dismissed. Rule discharged. No costs.
JUDGE JUDGE
belkhede, PA
