Bombay High Court

Shri Shivaji Education Society, ... vs Maharashtra University Of Health ... on 30 June, 2017

Bench: Prasanna B. Varale

                                         1                                       WP2718.15.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               : NAGPUR BENCH : NAGPUR.


                      WRIT PETITION NO. 2718 OF 2015

 PETITIONERS : 1] Shri Shivaji Education Society, Amravati,
                  (Maharashtra State), through its President,
                  Shivaji Nagar, Amravati - 440 603

                          2] Shri Shivaji Education Society, Amravati,
                             (Maharashtra State), through its Secretary,
                             Shivaji Nagar, Amravati - 444 603

                                              VERSUS

 RESPONDENTS: 1] Maharashtra University of Health Sciences,
                 Wani Road, through its Registrar,
                 Mhasrul, Nashik - 422 004.

                          2] Grievance Committee, 
                             Through its Chairperson, 
                             Maharashtra University of Health Sciences,
                             Wani Road, Mhasrul, 
                             Nashik - 422 004.

                          3] Dr. Padmakar S/o Rambhau Somwanshi,
                             Aged about 59 years, 
                             Occupation - Medical Practitioner,
                             R/o Somyukta Hospital Building,
                             University Road, Camp - Amravati.

  ------------------------------------------------------------------------------------------------
        Mr. K. H. Deshpande, Senior Advocate with Mr. S.V. Purohit,
        Advocate for the petitioners.
        Mr. Abhjeet L. Deshpande, Advocate for respondent nos.1 and 2
        Mrs. Neeta Jog with Mr. S.S.Shingane, Advocates for Resp.No.3
  ------------------------------------------------------------------------------------------------

                    CORAM : PRASANNA B. VARALE, J.
                  Judgment reserved on        : May 02, 2016.
                  Judgment pronounced on  : June 30, 2017




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                                     2                                WP2718.15.odt


 JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

with the consent of the learned counsel for the respective parties.

2] The petitioner - Shri Shivaji Education Society, is a

society and trust, duly registered under the Societies Registration

Act, 1860 and also under the Bombay Public Trust Act, 1950,

respectively. The petitioner-society runs various institutions and

colleges imparting education. The petitioner-society, by this petition,

challenges the report of respondent no.2 - Grievance Committee,

through its Chairperson, Maharashtra University of Health Sciences,

Nashik (hereinafter referred to as 'the Grievance Committee' for the

sake of brevity), dated 28.11.2014 ; a Resolution dated 17.3.2015

passed by the Management Council of respondent no.1 - Maha-

rashtra University of Health Sciences, Nashik (hereinafter referred to

as 'the University' for the sake of brevity) ; and the communication

of the Registrar of respondent no.1 University, dated 17.3.2015.

3] The facts, in brief, giving rise to the present petition can

be stated thus -

3 WP2718.15.odt

Respondent no.3 - Dr. Padmakar Somwanshi was

initially appointed as a Reader by the petitioner-society in the

medical college namely Dr. Panjabrao alias Bhausaheb Memorial

Medical College in the year 1987. Later on, he was appointed as a

Professor in the year 1988 and in the year 1994, he was appointed as

an Officiating Principal. His appointment was under challenge

before this Court in a writ petition. It may not be necessary to refer

to the other details. The respondent no.3 was then appointed as a

Dean in the year 1997 vide order dated 20.09.1997 and this order

was also the subject matter of Writ Petition No. 3774/1997. The said

writ petition is pending before this Court.

4] On 01.8.2007 / 02.8.2007, a team from Income Tax

Department reached the aforesaid college with a warrant in the

name of respondent no.3. A raid was conducted by the team of the

Income Tax Department and in the raid/search/survey, cash amount

of Rs.47,30,665/- was found in the Safe of the college. As no record

was available in relation to the amount of Rs.46,17,000/-, the said

amount was seized by the Income Tax Department. The respondent

no.3 was enquired by the said team of the Income Tax Department.

4 WP2718.15.odt

He was also asked to provide the receipts of the said amount. At the

relevant time, the respondent no.3 was unable to provide any proper

explanation and subsequently he submitted that the amount was

towards donation. As the matter was reported in the newspapers,

the petitioner-society took serious note of the matter and asked the

respondent no.3 to proceed on compulsory leave for three months,

by order dated 07.8.2007.

5] On 18.8.2007, the petitioner-society formed a Fact

Finding Committee, consisting of five members for an enquiry. The

said Fact Finding Committee submitted its report, dated 23.11.2007

with the observation that the respondent no.3 had misappropriated

the funds of the college and was responsible for the irregularities and

the mismanagement. On the basis of above referred report, the

President of the petitioner-society issued an order of suspension and

constituted an Enquiry Committee for conducting the Disciplinary

Enquiry against the respondent no.3. Charge-sheet was issued to

respondent no.3 containing 18 charges along with an order of

suspension. The Executive Committee of the petitioner-society, in its

meeting dated 17.2.2008, passed Resolution Nos.61 and 62, thereby

5 WP2718.15.odt

approving the report of the Fact Finding Committee and gave an

approval to the action of the President of issuance of charge-sheet

and order of suspension. The said Resolutions were unanimously

passed. The Minutes of Meeting, dated 17.2.2008 were confirmed

in the Executive Committee meeting on 04.5.2008.

6] On 14.7.2008, additional charge-sheet was issued by

framing 5 additional charges and on 07.10.2008, one more

additional charge was framed against the respondent no.3. The

respondent no.3 submitted his written submissions/reply on

21.08.2008, 18.7.2008 and 15.2.2009, respectively. The meetings

of the Enquiry Committee were held from 05.6.2008 to 12.09.2009.

The petitioner-society examined six witnesses on its behalf, whereas

the respondent no.3 examined four witnesses. It is the case of the

petitioner-society that the enquiry was conducted by following the

principles of natural justice as well as by following the other settled

Rules of an enquiry. Out of 24 charges framed against respondent

no.3, 14 charges were found to be proved as per the enquiry report.

The enquiry report was submitted on 26.09.009.

                                   6                                WP2718.15.odt


 7]               In   the   meantime,   one   Dr.   G.V.Patil,   the   ex-Vice

Chancellor of Amravati University made a complaint to the State

Government and prayed for high level enquiry in the matter on the

backdrop of the fact that there was a raid conducted by the Income

Tax Department in the medical college. Accordingly, a Three

Member Committee was appointed to conduct an enquiry on the

complaint of Dr. Patil. The said Enquiry Committee submitted its

report observing that there were certain financial irregularities and

the record was not properly maintained.

8] The report of Departmental Enquiry dated 26.09.2009

was placed before the Executive Committee of the petitioner-Society

on 19.11.2009. The Executive Committee unanimously accepted the

enquiry report and additionally, authorized the President to take all

the further steps in the matter. The said resolution of the Executive

Committee was unanimously passed. On 10.12.2009, a show cause

notice was issued to the respondent no.3 along with a copy of

enquiry report, asking him to submit written explanation, if any.

9] It is the case of the petitioner-society that an employee

of the petitioner- society was deputed to serve the show cause notice

7 WP2718.15.odt

with the enquiry report to the respondent no.3 and upon reaching

the residence/hospital of respondent no.3, it was learnt that father of

respondent no.3 was not well and as such, the petitioner-society

asked the said employee to serve the copy of show cause notice and

enquiry report upon one Smt. Maya Bobde, who was an employee of

respondent no.3 in his private hospital. It is the case of the

petitioner-society that thus, the show cause notice and enquiry report

was duly served and the signature of said lady employee was also

obtained in the dak-book of the college.

10] On 11.01.2010, the respondent no.3 was dismissed from

the services of the petitioner-society. Though, the petitioner-society

wanted to serve the order on the respondent no.3 and as the

respondent no.3 did not come forward to receive and accept the

order, the said order was forwarded through the postal

communication i.e. through Registered post and the same was served

on respondent no.3 on or about 16.1.2010. Thereafter, the

respondent no.3 gave an application to the petitioner-society

submitting that he has not received certain documents. The

application/communication of respondent no.3 was replied by the

8 WP2718.15.odt

petitioner-society stating that all the necessary documents such as

show cause notice and enquiry report are duly served on him.

11] The respondent no.3, feeling aggrieved by the order of

dismissal, dated 11.01.2010, approached the respondent no.2 -

Grievance Committee by presenting an appeal under Section 53 of

the Maharashtra Universities of Health Science Act, 1998. The

petitioner-society opposed the appeal by filing reply along with the

documents and the respondent no.3 filed his re-joinder to the reply.

The respondent no.2 - Grievance Committee made a report and

recommended to the Management Council to set aside the dismissal

order. The Management Council accepted the report and passed the

resolution accordingly. The report of the Grievance Committee and

the resolution passed by Management Council were the subject

matter of Writ Petition No. 4065/2010 preferred by the respondent

no.3. By order dated 04.10.2011, this Court was pleased to remand

the matter back to the Grievance Committee. On remand by this

Court, the Grievance Committee again heard the matter and

recorded its finding and by its report, recommended to the

Management Council for quashing and setting aside the order of

9 WP2718.15.odt

dismissal. The Grievance Committee was of the opinion that there

were gross irregularities in conduct of the enquiry proceedings. The

Grievance Committee recommended that the respondent no.3 should

be reinstated and should be given all the consequential benefits. The

Management Council, on 02.3.2012 on receipt of the report of the

Grievance Committee, passed resolution thereby quashing and

setting aside dismissal order of respondent no.3 and directed the

petitioners to reinstate the respondent no.3 along with all

consequential benefits. The report of the Grievance Committee and

resolution of the Management Council and the communication

forwarded by the respondent no.1 -University on the basis of

resolution of the Management Council, were challenged by the

petitioner-society by filing Writ Petition No. 3683/2012. On a query

made by this Court to the respondent no.3 about his grievance with

the management, the respondent no.3 stated that he wanted a clean

service report by withdrawal of stigmatic dismissal order.

12] It is the case of the petitioner-society that the respondent

no.3 submitted before this Court that he is not interested in

monetory compensation or back wages. A pursis dated 17.10.2013

10 WP2718.15.odt

was filed by the respondent no.3 before this Court containing a

proposal. The petitioner-society accordingly considered the proposal

of respondent no.3 and a resolution was passed on 29.10.2013.

However, the respondent no.3 backed out from his proposal.

13] In Writ Petition No. 3683/2012, this Court found that

the order of the Grievance Committee was passed without a proper

coram and as such, this Court again remanded the matter back to the

Grievance Committee for decision afresh. The respondent no.3

submitted his representation and the petitioner-society filed its

additional submissions. The respondent no.2 - Grievance Committee

prepared its report. It is the case of the petitioner-society that this

report was not signed by all the members of the Committee. On

receiving the report, the Management Council expressed its opinion

that it will be better if the parties settle the dispute amicably between

themselves. Accordingly, a resolution was passed. It is the further

case of the petitioner-society that respondent no.3 was not ready for

the terms of compromise and was insisting for back wages. As such,

the respondent no.2 - Grievance Committee submitted its report on

03.3.2015 to the Management Council. It is the further case of the

11 WP2718.15.odt

petitioner-society that the Management Council by a cryptic

Resolution confirmed the report of the Grievance Committee. Thus,

the report of the grievance Committee and the resolution of the

Management Council are challenged in this petition by the

petitioners. It can safely be said that the petition is having

checkered history and rounds of litigation.

14] Mr. K. H. Deshpande, the learned Senior Counsel

assisted by Mr. S.V. Purohit, learned counsel for the petitioners,

vehemently submitted that the impugned report of respondent no.2 -

Grievance Committee, the resolution passed by the Management

Council and in turn the communication forwarded by the respondent

no.1 - University to the petitioner-society, are clearly unsustainable

on more than one grounds. The learned senior counsel, by heavily

attacking the impugned report of the Grievance Committee,

submitted that the Grievance Committee has acted in excessive

exercise of the powers. He submitted that the Grievance Committee,

established under the Maharashtra Universities Act, initially, though

did possess the power to settle the disputes and subsequently, under

the Maharashtra Health University Act, also do possess the same

12 WP2718.15.odt

powers.

15] Mr. Deshpande, the learned senior counsel vehemently

submitted that the Grievance Committee has exceeded in exercising

its powers while submitting the report, thereby passing declaratory

order. He then submitted that even the Management Council do not

possess any power to pass resolution, thereby directing the

petitioner-society to reinstate the respondent no.3. Mr. Deshpande,

the learned senior counsel then submitted that such powers are the

special powers and under the provisions of the Industrial Disputes

Act, more particularly under Section 11A, the learned Member of the

Industrial Court can pass the orders for reinstatement, as these

powers are conferred under the Act. Such is not the case with the

Grievance Committee is the submission of Mr. Deshpande, the

learned senior counsel. He further submitted that the power of

reinstatement also vests with the Presiding Officer, School Tribunal

under the Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, but the same power cannot be equated with

the power of the Grievance Committee.

                                   13                                  WP2718.15.odt


 16]              It   was   the   submission   of   Mr.   Deshpande,   the   learned

senior counsel for the petitioners that a remedy of appeal is provided

under the MEPS Act, which lies before the School Tribunal and the

School Tribunal by exercising those powers may issue directions to

the society/institute to reinstate the employee, but in any case the

Grievance Committee can not exercise such powers. It was the

submission of the learned senior counsel that the services of the

respondent no.3 were governed under a contract with the petitioner-

society. He further submitted that though, it was submitted before

the Grievance Committee that the appointment of respondent no.3 as

Dean and his recognition in the post of Professor are the matters

which are subjudised before this Court, the Grievance Committee

could not have recorded the finding against the petitioner-institute.

17] Mr. Deshpande, the learned senior counsel then

submitted that the petitioner-society had initially constituted a Fact

Finding Committee and subsequently Departmental Enquiry was

initiated against respondent no.3. He further submitted that the

Departmental Enquiry was conducted against respondent no.3 by

following the principles of natural justice namely giving opportunity

14 WP2718.15.odt

of hearing and following the settled rules of the Departmental

Enquiry. He submitted that respondent no.3 had participated in the

enquiry and had supported his case by examining the witnesses of

the petitioners and presenting his own witnesses. The learned senior

counsel then submitted that the Enquiry Committee, by evaluating

the material in the form of documents as well as in the form of

statements of witnesses, arrived at the conclusion that all the major

charges against respondent no.3 were proved and accordingly, the

order of dismissal was passed.

18] Mr. Deshpande, the learned senior counsel for the

petitioners then submitted that the necessary steps, such as

establishing the Fact Finding Committee, then Enquiry Committee,

were taken in accordance with the Constitution of the petitioner-

society. The resolutions to that effect were passed. He then

submitted that majority of the Members of the petitioner-society

supported the resolutions. He then submitted that the Minutes of

Meeting were approved as per the Constitution of the Society and

sanction of the President was also obtained. The learned senior

counsel then submitted that the Grievance Committee, by erroneous

15 WP2718.15.odt

appreciation of the material, took a contrary view against the view in

the Departmental Enquiry. The learned senior counsel submitted

that the conclusions arrived at in the Departmental Enquiry, were by

following the principle of preponderance of probabilities. He then

submitted that the Grievance Committee has acted as if it was sitting

over the Departmental Enquiry as an appellate forum and proceeded

with the charges against the respondent no.3 to say that the charges

are not proved beyond reasonable doubt. Mr. Deshpande, the

learned senior counsel submitted that the principle of proving the

charges beyond reasonable doubt is applicable in criminal cases and

the same is not applicable in the matters of Departmental Enquiry.

19] It was also the submission of Mr. Deshpande, the

learned senior counsel for the petitioners that the respondent no.3

was acting as a representative of the management in view of the

provisions of the MHUS Act as he was occupying the post of Principal

and the Grievance Committee is empowered to adjudicate the

dispute between the teacher and the management. He submitted

that as the respondent no.3 was the representative of the petitioner-

society, the Grievance Committee could not have entertained the

16 WP2718.15.odt

dispute of respondent no.3. He then submitted that the observations

of the Grievance Committee are contrary to the record. Mr.

Deshpande, the learned senior counsel submitted that the Grievance

Committee has erroneously observed that the power of the governing

council was exercised by one man only and no post-facto sanction

was given to the decisions of initiating enquiry against respondent

no.3 or passing the orders of dismissal of respondent no.3. He

submitted that the material was submitted before the Grievance

Committee that the governing council was consisting of more than

one member and in the Constitution of the petitioner-Society, there

is provision of post-facto sanction of the President and such post-

facto sanction of the President was not obtained. The learned senior

Advocate submitted that as per the Constitution of the petitioner-

society, the Management Council can take decisions in cases of

emergency and in such emergencies, it was not necessary to obtain

sanction from the President.

20] Mr. Deshpande, the learned senior counsel for the

petitioners then submitted that the Grievance Committee also erred

in observing that the additional charges against the respondent no.3

17 WP2718.15.odt

could not have been framed and no opportunity was granted to the

respondent no.3 to meet with the additional charges. The learned

senior counsel submitted that the petitioner-society, on the

availability of the material, was justified in framing the additional

charges. The learned senior counsel, in support of his submissions

invited my attention to the copy of the Constitution of the society

placed on record. He then submitted that there were serious charges

against the respondent no.3 such as unaccounted money found in

the office, that too in the drawer of respondent no.3 when he was an

Officiating Dean. The raid was conducted by the Income Tax

Department in the college run by the petitioner-society and the same

was given vide publicity in the newspapers, thereby causing loss to

the reputation of the petitioner society in the public eye. The learned

senior counsel then submitted that the other serious charges were

namely non-payment of salary of the employees, purchase of

Sonography machine, submitting falls bills for personal telephone

used by respondent no.3, withdrawal of the amount from medical

store and breach of an undertaking to the Court in respect of

Sonography machine by the respondent no.3 etc. The learned senior

counsel for the petitioner thus submitted that the necessary evidence

18 WP2718.15.odt

in the form of record and the statements were already assessed by

the Departmental Enquiry Committee and neither the Grievance

Committee nor this Court can re-appreciate the evidence. He

submitted that the recommendations of the Grievance Committee

could not have been accepted by the Management Council as the

report of the Grievance Committee was not signed by all the

members.

21] Mr. K.H.Deshpande, the learned senior counsel for the

petitioners, in support of his submissions, placed reliance on the

following judgments -

        Sr.      Description
        No.
        1)       (2015) 3 SCC 101
                 General Manager -Vs- R Periyasamy
        2)       (2011) 4 SCC 84
                 State Bank of Bikanare -Vs- Nemichand
        3)       (2010) 9 SCC 496
                 Kranti associates-vs Masud Ahameed
        4)       (2013) 12 SCC 573
                 Atlas Cycle -vs- Kitab Sing
        5)       AIR 1970 SC 1302

M/s Mahabir Prasad -Vs- State of Utter Pradesh.

        6)       (1996) 3 SCC 119
                 M/s M.L. Jagi - Vs- Mahanagar Telephon
        7)       (1969) 3 SCC 868
                  M/s Tavancore Rayon -Vs- UOI





                                   19                                  WP2718.15.odt


        8)       (2013) 3 SCC 372
                 State of Utter Pradesh -vs Ashok Kumar
        9)       AIR 2004 SC 1373
                 M/s Pearlite Lineors -vs- Manorama Sirsee
        10)      (1976) 2 SCC 58
                 Executive Committee -vs- Laxminarayan
        11)      2010 (5) Mh.L.J. 33

Maharashtra University of Health Sciences -vs- Satchikitsa Prasarak Mandal.

12) Writ Petition No. 4701/2014 Takhatmal Shrivallabh -vs- The member Industrial Court.

13) (2012) 2 SCC 641 Burdwan Central Cooperative Bank Ltd., and another v/s Asim Chatterjee and others.

14) (1973) 2 SCC 543 Sri Parameshwari Prasad Gupta V/s The Union of India

22] Per contra, Mr. Abhijeet Deshpande, the learned counsel

for respondent nos.1 and 2 and Mrs. Neeta Jog with Mr.

S.S.Shingane, the learned counsel for the respondent no.3 supported

the impugned report of the respondent no.2 - Grievance Committee,

the resolution passed by the Management Committee and the

communication issued by the respondent no.1 University.

23] Mr. Abhijeet Deshpande, the learned counsel for

respondent nos.1 and 2 submitted that the grounds raised by the

petitioners in challenge to the power of the Grievance Committee is

clearly unsustainable. He submitted that in the earlier round of

20 WP2718.15.odt

litigation i.e. in Writ Petition No.4065/2010 and Writ Petition

No.3683/2012, the petitioner-society had raised the very grounds.

The learned counsel then submitted that in the earlier rounds of

litigation, the matter was remanded back to the Grievance

Committee for fresh decision. He submitted that the petitioners in

earlier round though, raised the ground of jurisdiction of the

Grievance Committee, while remanding the matter to the Grievance

Committee under the orders of this Court, the petitioner-society did

not seek any liberty for keeping the point of jurisdiction of the

Grievance Committee or Management Council open to be agitated

either before the authority or before this Court. The learned counsel

then submitted that on the contrary, the petitioners on remand of the

matter to the Grievance Committee, had participated in the

proceedings.

24] Mr. Deshpande, the learned counsel for respondent

nos.1 and 2 submitted that though, the petitioners raised grievance

that the powers vests with the Grievance Committee to adjudicate

the dispute between the management and teachers, he by inviting

my attention to the provisions of the MUHS Act, submitted that the

21 WP2718.15.odt

Act takes into its sweep the Principal also and merely because the

respondent no.3 was representing the management in some matters

of administration, that cannot be a ground to submit that the

respondent no.3 could not have approached the Grievance

Committee for redressal of his grievance. Mr. Deshpande, the

learned counsel for respondent nos.1 and 2 invited my attention to

the provisions of the MUHS Act, more particularly Sections 53(1)

and 53(2) to submit that the Act do not exclude from Grievances

Committee's and Management Council's jurisdiction and power in the

matters wherein there is a dismissal or termination after holding an

enquiry or simple termination or dismissal. He submitted that the

widest possible jurisdiction has been conferred upon the respondent

no.2 - Grievances Committee. Mr. Deshpande then submitted that

there is no power under the MUHS Act or the necessary directions

issued to deal with the grievances and complaints of the concerned

persons including the matters wherein there is a dismissal or

termination after holding an enquiry. The learned counsel then

submitted that the petitioners though raised a challenge to the report

of the Grievance Committee and the resolution of the Management

Council, the petitioners have not challenged the relevant provision of

22 WP2718.15.odt

the Act and so long as the provision is there in the statute book, no

fault can be found with the act of the Grievance Committee and its

report. Mr. Deshpande, the learned counsel for respondent nos.1

and 2 submitted that the Grievance Committee, on subjective

satisfaction of the material, found that majority of the charges were

not proved against the respondent no.3, resultantly, the Grievance

Committee submitted its report.

25] Mr. Deshpande, the learned counsel for respondent

nos.1 and 2 then submitted that the submission of the petitioners

that the Grievance Committee passed the order in directory nature, is

unacceptable for the reason that the report is in recommendatory

nature and accordingly, the Management Council also passed the

resolution accepting the recommendations of the Grievance

Committee and in turn the communication was issued to the

petitioners by the respondent no.1 University. The learned counsel

placed heavy reliance on the judgment of the Hon'ble Apex Court

Court reported in 2010 (5) Mh.L.J. 33, in the case of Maharashtra

University of Health Sciences and others .vs. Satchikitsa Prasarak

Mandal and others. The learned counsel also invited my attention

23 WP2718.15.odt

to the judgment delivered by myself in Writ Petition No. 4701 of

2014, dated 18.1.2016 (Takhatmal Shrivallabh Homeopathic Medical

College and Hospital .vs. The Member, Industrial Court and another).

The learned counsel for respondent Nos.1 and 2 also invited my

attention to Direction No.5 of 2012, which is issued to provide the

procedure to deal with the grievances of teachers including

Principal/Dean and other non-teaching employees of the University,

affiliated colleges, recognized institutions, University, Colleges and

Institutions. The learned counsel Mr. Deshpande submitted that in

the said direction, in clear and unambiguous words, it is stated that

the Grievance Committee is empowered to entertain and consider the

grievances or complaints of teachers including Principals/Dean. The

learned counsel then submitted that in view of the provisions of the

MUHS Act as well Direction No.5/2012, the petitioners cannot

submit that the Grievance Committee was not empowered to decide

the grievances of the respondent no.3.

26] Mrs. Jog, the learned counsel for respondent no.3, firstly

by inviting my attention to the provisions of MUHS Act, vehemently

submitted that the Act empowers the Grievance Committee to decide

24 WP2718.15.odt

the disputes and the Grievance Committee committed no error in

deciding the challenge raised by the respondent no.3 to the report of

the Departmental Enquiry and ultimate order of dismissal. Mrs. Jog,

the learned counsel then submitted that the Grievance Committee on

a just and proper appreciation of the material found that the decision

in the Departmental Enquiry was an erroneous decision. She

submitted that the petitioners have utterly failed to prove the charges

against the respondent no.3. She then submitted that in such a

situation, the scope of judicial review would be limited one and in

the present matter there is no scope for an exercise of judicial review.

The learned counsel for respondent no.3 then submitted that as per

the Constitution of the petitioner-society, the power of appointment

and removal lies with the Executive Committee and the President

alone cannot exercise such power. She invited my attention to the

particular clauses of the Constitution of the society namely Clause

16(3), 10(e) and 11(a) and (b). Mrs. Jog, the learned counsel then

submitted that though, the petitioners had appointed Fact Finding

Committee on 23.11.2007, the copy of the report of the said

Committee was neither submitted before the Grievance Committee

nor it was supplied to the respondent no.3. The learned counsel then

25 WP2718.15.odt

submitted that the findings of the Departmental Enquiry and

imposition of the punishment is only under the signature of the

President of the petitioner-society. The order dated 06.12.2007 is

not approved by the Executive Committee. Mrs. Jog, the learned

counsel further submitted that though, it was the stand of the

petitioners that there was a post-facto sanction to the decision taken

by the Management Council in its meeting and approved by the

resolution, there was no sanctity to the resolutions. Mrs. Jog then

submitted that the witnesses examined by the petitioner-society in

the Departmental Enquiry were not supporting the case and in the

cross-examination of these witnesses, the respondent no.3 was

successful to show that these witnesses were not supporting the case

of the petitioners.

27] Mrs. Jog, the learned counsel for the respondent no.3

placed reliance on the following judgments :

Sr. Description No.

1 2010 (3) SCC 786 Maharashtra University of Health Sciences and others V/s Satchikitsa Prasarak Mandal and others 2 Unreported judgment of this Hon'ble Court in W.P. No. 4701/2014 Takhatmal Shrivallabh Homeopathic Medical College and Hospital

26 WP2718.15.odt

v/s Member Industrial Court 3 Unreported judgment of this Hon'ble Court in W.P. No. 5823/2007 Satchikitsa Prasarak Mandal and others V/s Maharashtra University of Health Sciences and others.

        4     (1983) 2 SCC 433
              Titaghur Paper Mills V/s State of Orissa
        5     W.P. No. 4065/2010 between Shri Shivaji Edn. Society, Amravati

and others V/s Maharashtra University of Health Sciences and others 6 2000(4) SCC 108 Muni. Commissioner, Calcultta V/s Salil Kumar Banarjee 7 2007 (4) Mh. L.J. 258 Municipal Council Hinganghat V/s Sanjay Dhanraj Yenorkar 8 (2008) 9 SCC 1 Shamshad Ahmad and others v/s Tilak Raj Bajaj 9 (2010) 8 SCC 329-

Shalini Shetty V/s Rajendra Patil 10 (2010) 11 SCC 233 General Manager (P) V/s Daya Singh 11 (2013)6 SCC 602, S R Tiwari v/s UOI 12 (1995) 6 SCC 279, State Bank of Bikaner V/s Prabhu Grover 13 (1977) 1 SCC 472, Tara Chand Khatri v/s Muni Corp. Delhi 14 (1989) 3 SCC 132, Marathwada University v/s Seshrao Chavan 15 (2008) 7 SCC 748, Deepak Agro Foods v/s State of Rajasthan 16 (1975) 1 SCC 559, Ramchandra Keshav Adke v/s Govind Joti 17 1989 (2) SCC 458 M/s Siddeshwari Cotton v/s U.O.I.

18 (1999) 1 SCC 759 Apparel Export Promotion Council V/s A.K. Chopra 19 (2009) 12 SCC 78 Union of India and others V/s Gyan Chand Chattar

27 WP2718.15.odt

28] On the backdrop of the submissions of the learned

counsel for the respective parties, I have gone through the material

placed on record. Perusal of the material show that a committee i.e.

Fact Finding Committee was constituted for conducting enquiry

under the Chairmanship of Dr. S.N. Patil and the said committee

submitted its report on 23.11.2007. Insofar as the charges framed

against respondent no.3 is concerned, the learned counsel for the

petitioners and learned counsel for respondent no.3 made

submissions in detail on practically each and every charge. It may

not be necessary for this Court to refer either to all the charges or the

submissions and counter submissions on it. The relevant charges for

consideration are the alleged misappropriation and misconduct on

the backdrop of raid conducted in the College by the Income Tax

Department. The other relevant charge is in the nature of the

allegation in respect of financial misdeeds, accepting the amount

towards tuition fees from various students and instead of depositing

the said amount in the accounts of the petitioner-society, the

respondent no.3 withhold the same for long period and this act was

amounting to misappropriation , misconduct and unlawful gain. The

other charge was, respondent no.3 collected the amount towards

28 WP2718.15.odt

salary of teaching staff to the tune of Rs.30,67,480/- for the period

from March, 2005 to June, 2007 and utilized the same for personal

benefits, thereby causing loss to the petitioner-society. The other

charge was drawing an amount of Rs.10,16,548.22 from the medical

store and utilizing the said amount for personal use. The other

charge was of misbehaviour with the staff members. Then there was

a charge of obtaining new ultra sonography machine by selling

/exchanging the old machine by the respondent no.3 without

seeking permission from the Court, though, an undertaking was

given to the Court.

29] The respondent no.3, by submitting his written

statement and reply denied all the charges. It was the submission of

the respondent no.3 that all the material was not supplied to the

respondent no.3 so as to counter the charges. It was also the

submission of the respondent no.3 in the written statement and reply

that the charges are vague and not supported by authentic

documentary evidence. It was submitted by the respondent no.3 that

when the alleged raid was conducted, he was not at his office of Dr.

Panjabrao alias Bhausaheb Memorial Medical College. It was the

29 WP2718.15.odt

counter submission of the respondent no.3 that because of the

newspaper publication in respect of the Income Tax raid and stand

taken by the petitioner-society that it has nothing to do with the

money seized during the Income Tax raid on 01.8.2007, his image

and reputation was tarnished in the public at large.

30] Insofar as the charge of collection of the amount towards

tuition fees and not depositing the same in the petitioner-society is

concern, it was submitted by the respondent no.3 that the amount of

advance tuition fees was accepted as per the directions of the

President of the petitioner-society and the said amount was also

deposited in the College office. The respondent no.3 also denied the

charge of misbehaviour with the staff members. Insofar as the

charge in respect of purchase and selling of ultra sonography

machine is concerned, it was submitted by the respondent no.3 that

the sonography machine earlier purchased by the college was

outdated and was not in working condition. There was a committee

for purchase of sonography machine, consisting of Head of the

Department of Radiology, Hospital Superintendent, Vice President,

Treasurer and the Executive members. It was submitted that as the

30 WP2718.15.odt

college was in need of new and updated sonography machine and as

there was a buy-back offer from the dealer, under the collective

decision of the purchase committee, new machine was purchased.

The dealer from whom new machine was purchased had agreed to

produce the old machine as and when required for the Court

proceedings. Thus, it was submitted that the respondent no.3 had

not committed any breach of undertaking given to the Court.

31] A specific stand was taken by the respondent no.3 that

the petitioner-society on one hand claims that the it has no concern

with the amount seized in the raid conducted by the Income Tax

Department and on the other hand, the petitioner-society approaches

the Income Tax department and Court below for return of the cash

amount. Mrs. Jog, the learned counsel vehemently submitted that

when the petitioner-society sought for return of the cash amount

seized in the raid, it does not lie in the mouth of the petitioner-

society that it has no concern with the said amount and only the

respondent no.3 is responsible for the alleged misdeeds. My

attention was invited to the stand taken by the President of the

Society to claim the amount, supported with the statement on oath

31 WP2718.15.odt

before the Income Tax authority that some time the petitioner-society

approached the donors or some times donors approached the society

for donations and the amount seized in the raid conducted by the

Income Tax department was the amount of donation. The material

placed on record show that the respondent no.3 had sought for the

necessary documents to reply the additional charges and in the

communication, dated 15.2.2009, stated that as he was not in receipt

of all the necessary documents, he is submitting his reply under

protest. Though, it was the stand of the petitioners that in the

Departmental Enquiry the principle of natural justice was followed

and an opportunity of hearing was granted to the respondent no.3,

the material placed on record shows that the statement of charges

was supplied to the respondent no.3 through one employee of the

petitioner-society. It also reveals that said employee visited the

residence of respondent no.3 and at the relevant time, the

respondent no.3 was not available and the said statement of charges

along with the notice, was served on one of the lady staff member

working in the private hospital of the respondent no.3.



 32]              Perusal   of   the   statements   of   witnesses   in   the





                                  32                                   WP2718.15.odt

Departmental Enquiry show that witness no.6 namely Vinayak Patil,

who was working as Accountant in the medical college of the

petitioner-society, stated that the amount seized by the Income Tax

department in the raid was the amount of donations collected from

the donors. He stated that he had submitted the list containing the

names of donors, amount of donation and receipt book number to

the Assistant Commissioner of Income Tax department in response to

the communication, dated 17.1.2008. The witness further stated

that he used to keep the amount of donation in the treasury. In his

cross-examination, he stated that the keys of said treasury were used

to be kept in his possession. He further stated in the cross-

examination that the college had not opened separate bank account

for receiving donations. He further submitted in the cross-

examination that the amount of donation was not in possession of

the respondent no.3. Insofar as the charge in respect of ultra-

sonography machine is concerned, this witness states that a new

sonography machine was obtained under exchange of old machine

and that decision was taken by the Purchase Committee. He then

states that the dealer, from whom old sonography machine was

exchanged, undertook to give an undertaking that he would present

33 WP2718.15.odt

the old machine as and when directed by the Court.

33] Then there is statement of the witness of respondent

no.3, namely Dr. Nilesh More. The statement of this witness shows

that he was working as a Paediatrician in the Civil Hospital, Amravati

from 22.12.2007 and was desirous of seeking admission for his wife

in the medical college for DMRE course for which he visited the

President of the society. He stated that on 01.8.2007, he was

directed to deposit an amount of Rs.4 lakhs. On 01.8.2007, he had

been to the office of the medical college of the petitioner-society so

as to deposit the amount. On that day, the respondent no.3 asked

him to wait for receipt of the amount. The said witness was waiting

for receipt, but the respondent no.3 left the college and proceeded to

the University for attending the meeting. Thus, the statement of this

witness support the stand of the respondent no.3 that at the relevant

time when the raid was conducted in the college, he was not present

in the college and raid was conducted in his absence.

34] As stated above, as the petitioner-society as well as the

respondent no.3 placed on record bulky material in respect of

34 WP2718.15.odt

submissions and counter submissions as regards the charges, it is not

necessary to refer to all the material in detail. This Court cannot act

as an Appellate Authority over the decision of the Grievance

Committee. Suffice to say that the Grievance Committee found that

insofar as the charge in respect of the raid conducted by the Income

Tax department and the amount seized in the raid, the only material

against the respondent no.3 was his signature. There was no

material against the respondent no.3 to show that the respondent

no.3 was in possession of the said amount. The Grievance

Committee also found that most of the charges were not proved

against the respondent no.3. Insofar as the charge of withdrawing

salary of the staff by the respondent no.3 is concerned, it reveals

from the statements of the witnesses that there was no complaint of

the staff against respondent no.3 for withholding the salary nor there

was any material that respondent no.3 used the amount for his

personal use. Thus, the material was falling too short to charge the

respondent no.3 for an act of misappropriation of funds.

35] Insofar as other charge of collection of amount as

donations from the students and not depositing the same with the

35 WP2718.15.odt

petitioner-society is concerned, the statements of witnesses reveal

that one Mr. Ronghe was receiving the amounts and cheques of

donations for and on behalf of the petitioner-society. Mr. Ronghe

was not examined by the Enquiry Committee. Perusal of the material

also show that though, it is alleged that there was misappropriation

of the amounts, the petitioner society had not lodged any report with

the police authorities for alleged misappropriation of the amount.

36] The respondent no.3 has placed on record a pursis

thereby giving details of the findings of the Fact Finding Committee

against the charges, findings of Departmental Committee and the

findings of the Grievance Committee. Though, it was the attempt of

the learned senior counsel Mr. Deshpande for the petitioners that the

charges against the respondent no.3 are of very serious nature,

perusal of the material show that the petitioner-society was unable to

prove the charges with substantial and supportive material. No error

was found in the conclusion arrived at by the Grievance Committee.

37] Though, Mr. Deshpande, the learned senior counsel for

the petitioners vehemently submitted that the Grievance Committee

36 WP2718.15.odt

exceeded in exercising its powers and on this ground the report of

the Grievance Committee is unsustainable, I am unable to accept the

submission of the learned senior counsel. It would be useful to refer

to the relevant provisions of the MUHS Act i.e. Section 53, which

read thus -

53. Grievances Committee.

(1) There shall be a Grievances Committee in the University to deal with the grievances of teachers and other employees of the University, Colleges, institutions and recognized institutions and to hear and settle grievances as far as may be practicable within six months, and the committee shall make a report to the Management Council.

(2) It shall be lawful for the Grievances Committee to entertain and consider grievances or complaints and report to the Management Council for taking such action as it deems fit and the decisions of the Management Council on such report shall be final.

(3) The Grievances Committee shall consist of the following members, namely:

                    (a) The Pro-Vice Chancellor                                Chairperson;
                    (b) Four members of the Management Council                 Members
                        nominated by the Management Council 
                        from amongst themselves 
                    (c) The Registrar Secretary                                Member

(4) The Registrar shall not have a right to vote.

38] Perusal of the aforesaid provision show that the

Grievance Committee is not prohibited to deal with the grievances of

37 WP2718.15.odt

teachers and other employees of the Universities and colleges. The

term "College" is defined under sub-section 11 of Section 2 of the

MUHS Act, which reads thus -

"2(11) "College" means a college imparting education in Health Sciences conducted by the University or affiliated to the University situated in the State of Maharashtra."

It is not in dispute that the respondent no.3 was the Officiating

Principal and Dean. The Act also defines 'Principal or Dean' under

sub-section 26 of Section 2 and the same reads thus -

"2(26) "Principal or Dean" means the head of a college, specialised educational institution, post- graduate centre or other recognized institution duly approved by the University."

Then, the term "Teachers" is defined under sub-section 35 of Section

2 of the Act, which reads thus -

"2(35) "Teachers" means full time approved Demonstrators, Tutors, Assistant Lecturers, lecturers, Readers, Associate Professors, Professors and other persons teaching or giving instructions on full time basis in affiliated colleges or approved institutions in the University."

                                   38                                   WP2718.15.odt


 39]              If the above referred provisions are read conjointly with

Direction No.5 of 2012, it leaves no doubt that the Grievance

Committee is empowered to deal with and decide the grievances of

the teachers, Principals, Dean and non-teaching employees of the

University, affiliated colleges or recognized institutions.

40] It would be interesting to note that in the earlier round

before this Court, the petitioner-society had challenged the report of

the Grievance Committee and this Court while dealing with the

challenge in Writ Petition No. 3683/2012 was pleased to observe at

paragraph 13 that -

13. Reliance is placed on the case of Chaganlal Girdhari Kundkar v/s Parmatma Ek Sewak Nagrik Sahakari Bank Ltd., Nagpur and others reported in 2009 (6) Mh.L.J. 463 to argue that Court cannot add words to Statute or replace the words, which are not there. In the ruling in the case of Executive Engineer Southern Electricity Supply Company of Orissa Ltd., (Southco) and another Vs. Sri Seetaram Rice Mill, 2012 (3) Mh.L.J. 536 (SC), relevancy of objects and reasons for enacting an Act is relevant consideration for the Court. In section 53 of MUHS Act, the provision for the Grievance Committee is to provide an effective grievance

39 WP2718.15.odt

redressal forum to teachers and other employees. The Grievance Committee has wide powers to deal with the grievances of the teachers and other employees of the University, College, Institution and to settle their grievances as far as may be practicable within certain time frame. The Grievance Committee under the MUHC Act must provide for inbuilt competent Authority to solve the dispute arising inside the University or educational Institution or likewise . By creating such forum, the University exercises the Authority and jurisdiction as a loco-parent is over teachers both approved and unapproved, to provide effective redressal forum to teachers working in various Colleges affiliated with the university. The dominant statutory intention is to protect dignity of teachers against any kind of harassment which they may receive at their workplace. The term 'grievance' is not defined by the 1998 Act. It indicates some complaint about unfair treatment, protest or grumble or sort of protest arising due to infringement of right, ill-treatment, injury or injustice done or unfairness caused. The dictionary meaning shows that it is feeling of resentment over something believed to be wrong or unfair. Grievance committee is the creation of the Statute created to hear and settle the grievances expeditiously and report to the Management council in the prescribed form for consideration and

40 WP2718.15.odt

follow-up decision in it's ensuing regular Meeting as far as possible. And to issue directions to be complied with within certain period. The intention of the law makers being to enable the grievance committee to hear and settle the grievance expeditiously and to report accordingly to the Management Council which in turn is required to take prompt action and to implement the decision. The MUHS Act aims at early expeditious hearing and decision and the report."

41] While dealing with an identical challenge and the

aforesaid provisions of the MUHS Act, the Hon'ble Apex Court in the

case of Mah. University of Health Sciences .vs. Satchikitsa Prasarak

Mandal (supra), which is relied on by the learned counsel for the

respondent nos.1 and 2, has observed thus -

"36. The purpose of setting up the Grievance Committee under Section 53 of the Act is to provide an effective grievance redressal forum to teachers and other employees. Any interpretation of 'teachers' under section 2(35) of the Act which denies the persons covered under section 2(35) an access to the said forum completely nullifies the dominant purpose of creating such a forum. It goes without saying that unapproved teachers need the protection of this forum more than the

41 WP2718.15.odt

approved teachers. By creating such a forum the University virtually exercised its authority and jurisdiction as a loco-parentis over teachers-both approved and unapproved and who are working in various colleges affiliated with it. The idea is to give such teachers and employees a protection against any kind of harassment which they might receive in their work place. The creation of such a forum is in tune with protecting the 'dignity of the individual' which is one of the core constitutional concepts."

42] In somewhat identical challenge in Writ Petition No.

4701/2014 (Takhatmal Shrivallabh .vs. Member, Industrial Court and

another), I had an occasion to consider the issue and by relying and

referring to the judgment of the Hon'ble Apex Court in Mah.

University of Health Sciences .vs. Satchikitsa Prasarak Mandal (supra),

it was observed by me at paragraph 8 that -

"As this Court had observed that the Grievances Committee takes and has to take into its fold all types of legal claims and further observation that the widest possible jurisdiction is conferred upon Grievances Committee by legislature. (emphasis supplied) The submission of learned counsel Shri Agnihotri that the Grievances Committee would have a limited jurisdiction

42 WP2718.15.odt

and issue to termination cannot be called in question before the Grievances Committee cannot be accepted. At the cost of repetition, it would not be out of place to mention that when this Court observed that when the Grievances Committee can deal with all possible grievances, that certainly includes the grievance of teaching employee or other employee and the grievances of illegal termination of teaching or non-teaching employees. The objection, thus, raised by the petitioner- institute was rejected by both the Courts on untenable grounds."

43] Considering the above referred aspects of the matter, I

find no merit in the petition, the petition thus being devoid of

merit, deserves to be dismissed and the same is accordingly

dismissed.

Rule stands discharged. No order as to costs.

JUDGE

44] At this stage, Mr. Purohit, the learned counsel for the

petitioners, on instructions, prays for stay to this judgment and order

for a period of three months so as to enable the petitioners to

approach the Hon'ble the Apex Court challenging the said judgment.

43 WP2718.15.odt

Mr. A.L.Deshpande, learned counsel for respondent