Panchasheel Teachers Education ... vs Suresh Wasudeo Raut And Another
2017 Latest Caselaw 599 Bom

                                           1                                   909-WP-2220-15.odt



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

                               WRIT PETITION NO. 2220/2015


PETITIONERS :                     1.      Panchsheel Teachers' Education Society, 
                                          Registration No. F-596, Akola, through its 
                                          President Shri H. S. Pundkar, R/o Professors' 
                                          Colony, Ranpise Nagar, Akola.

                                  2.      Dr. (Mrs) Manorama Haribhua Pudkar, 
                                          Principal, Arts, Commerce and Since college, 
                                          Balapur, Tah. Balapur, District Akola, R/o 
                                          Professors' Colony, Ranpise Nagar, Akola.

                                               VERSUS

 RESPONDENTS :                    1.      Suresh Wasudeo Raut,
                                          Aged about : 45 years,
                                          Occ : Nil, R/o Dnyaneshwar Nagar,
                                          Dabki Road, Akola.

                                  2.      The Joint Director Higher Education,
                                          Amravati Division, Amravati.

--------------------------------------------------------------------------------------------------------
Mr. N. S. Khandewale, Advocate for the petitioners.
Mr. Anilkumar J. Thakkar, Advocate for respondent No.1.
Mr. S. B. Bissa, AGP for respondent No.2.
 ---------------------------------------------------------------------------------------------------------


                                   CORAM :    PRASANNA B. VARALE, J.

                                   DATE     :  08/03/2017.


ORAL JUDGMENT :

1. Heard Shri N.S.Khandewale, learned counsel for the petitioners at

length.

2 909-WP-2220-15.odt

2. The petitioner No.1 is a Registered Education Society and running

various educational institutes imparting education at the Degree level and

the Post-Graduate level. The petitioner No.2 is the Principal of Arts,

Commerce and Science College, Balapur. The petitioners challenged the

Judgment and order dated 03/12/2014 passed by the learned Presiding

Officer of the University and College, Nagpur in Appeal No.A-5/2010. It may

not be necessary to give the facts in detail. Suffice to say that the respondent

No.2 who was appointed in the Institute of the petitioners as a Laboratory

Attendant sometime in the year 1992 worked with the Institute till the year

2007 continuously. It was the submission of the respondent No.1 that his

service record though was clean and unblemished, a charge-sheet was issued

against the respondent No.2. The respondent No.2 submitted his reply to the

charges levelled against him and exercise of enquiry conducted through

Enquiry Officer was undertaken. The respondent No.1 was suspended by

order dated 07/02/2007. Being aggrieved by the order of dismissal and also

being aggrieved by the non-grant of benefits i.e. subsistence allowance, the

respondent No.2 approached the University and College Tribunal, Nagpur by

preferring the appeal. The grounds raised by the respondent No.2 were about

faulty enquiry and the ground of breach of principles of natural justice. The

learned Presiding Officer of the University and College Tribunal, framed the

points for consideration namely;

                                        3                            909-WP-2220-15.odt



i)     Whether the enquiry was conducted fairly and properly ?

ii)    What order ?

3. The learned Presiding Officer of University and College Tribunal found

that the enquiry was not conducted fairly and properly. As such, resultantly,

the appeal was allowed. The petitioners were directed to reinstate the

respondent No.1 along with continuity of service. The learned Presiding

Officer further granted liberty to the petitioners to conduct the departmental

enquiry against the respondent No.1 afresh, within stipulated period of six

months from the date of the Judgment and order. The learned Presiding

officer further observed that if the departmental enquiry is not concluded

within the period of six months, the respondents i.e. petitioners herein shall

pay full back wages to the appellant i.e. respondent No.1.

4. Shri N.S.Khandewale, learned counsel for the petitioners made an

attempt before this Court to submit that all the necessary compliance of the

enquiry was done by following the procedure and the Rules and though Shri

N.S.Khandewale, learned counsel made an attempt to submit that the

charges were proved against the respondent No.1 and though Shri

Khandewale raised other grounds namely; no prejudice is caused to the

respondent No.1 as the respondent No.1 participated in the enquiry actively.

In am unable to accept the submissions of Shri Khandewale, learned counsel

for the petitioners. Though Shri Khandewale referred to voluminous record

4 909-WP-2220-15.odt

of the enquiry and to the statements of the witnesses, the controversy

involved in the petition is limited one. The respondent No.1 has raised the

ground of the faulty enquiry and breach of principles of natural justice before

the University and College Tribunal. It was submitted before the University

and College Tribunal that the respondent No.1 herein and appellant before

the Tribunal that as per the provisions of standard Code, the respondent No.1

could have nominated his representative / next friend to defend in the

enquiry. The respondent No.1 submitted the name of one Mr. U. B. Rajput as

his next friend to defend in the enquiry. Mr. Rajput was a teacher in the said

school and his name was suggested by respondent No.1 to defend his cause

in the enquiry. The name of Mr.Rajput submitted by the respondent No.1 to

defend his cause was not approved and was turned down by the Enquiry

Officer and objection was raised to the name of Mr.Rajput on the ground that

Mr.Rajput was a Law Graduate. The learned Tribunal, thereafter referred to

the relevant Rule i.e. Rule 46 (4)(c) which reads thus :-

Where the disciplinary authority appoints the Enquiring Authority, it may by an order appoint another employee or a legal practitioner as the Presenting Officer to present the case in support of the articles of charge before the Enquiring Authority. The employee may take assistance of any other employee to represent the case on his behalf, but may not engage a legal practitioner unless the presenting officer is a legal practitioner or the Disciplinary Authority, having regard to the circumstances so permits.

5. The Presiding Officer of University and College Tribunal observed that

if the Rule is read, it would be clear that what is prohibited is engagement of

legal practitioner by a delinquent where the Presiding Officer is not a legal

5 909-WP-2220-15.odt

practitioner. It was the attempt before the Tribunal and also before this Court

and the learned counsel for the petitioner Shri N.S.Khandewale submits that

the Enquiry Officer rightly rejected the application of respondent No.1 i.e.

delinquent employee on the ground that Mr. Rajput was a law graduate. The

perusal of the Rule clearly shows that the Enquiry Officer could not have

rejected the application merely because, Mr. Rajput was a law graduate. The

learned Tribunal rightly observed that there was no prohibition under Rule

46 (4)(c) to engage a law graduate, who is not in a legal profession. At the

cost of repetition, it is necessary to be stated that Mr. Rajput was merely

possessing Degree of Law and there is nothing on record to show that

Mr.Rajput is an active legal professional. On perusal of record with the

assistance of the learned counsel appearing for the petitioners and the

respondents, it further revealed that another name was suggested by the

respondent i.e. Mrs. Rajguru.

6. Shri N.S.Khandewale, learned counsel for the petitioners submitted

before this Court that the Enquiry Officer turned down the request of the

delinquent employee of nominating Mr. Rajput as his representative on the

ground that Mr. Rajput is an active legal professional and also worked as a

counsel for the institute. As such, there would have been certainly clash of

interest. Though, Shri N.S.Khandewale, learned counsel vehemently made

this statement before this Court on query put to him that whether this

objection raised before the Enquiry Officer and Enquiry Officer accepting that

6 909-WP-2220-15.odt

objection resultantly, turning down the request was communicated to the

delinquent employee. Shri N.S.Khandewale, learned counsel on going

through the record, fairly submitted that it was not communicated to the

delinquent employee but this objection was part of the proceeding in the

departmental enquiry.

7. On the backdrop of these facts, the statement of Shri N.S.Khandewale,

learned counsel is clearly unsustainable. Petitioners failed to give an

opportunity to the Respondent No.1 to the know the ground of turning down

his request. It was certainly in breach of principles of natural justice. As this

issue was not advanced before the learned Presiding Officer, it may not be

necessary to delve into detail of this issue. The learned Tribunal then found

that the respondent No.1 submitted two names of his representative namely;

1) Prof. Mukund Bharsakle, Commerce Lecturer in LRT College, Akola and 2)

Shri Bhatkar, a retired teacher. A perusal of order dated 18/09/2008 placed

on record, Annexure No.VI shows that the Presenting Officer was insisting

upon to provide the names of the representatives. The respondent No.1

submitted two names and the Enquiry Officer by observing that this is a last

chance, but only one representative is allowed, subject to Rules, posted the

matter on next date i.e. on 10/11/2008. It was observed by the Enquiry

Officer that the respondent No.1 i.e. the delinquent employee is supposed to

take assistance of other employees from same college and in spite of several

opportunities granted to the respondent No.1, no representative is present,

7 909-WP-2220-15.odt

the enquiry was posted on the next date i.e. on 17/11/2008. It was further

observed in the order that on the next date, Enquiry Officer shall take the

evidence of both the parties. On perusal of evidence of both the parties

referred to above, it clearly shows that there was an undue haste in the

proceeding of enquiry.

8. With the assistance of the learned counsel for the petitioners, I have

gone through the relevant Standard Code,1984.

On perusal of the relevant provisions, I could not find any prohibition

of submitting name of the representative from the other institute. The names

of representative submitted by the respondent No.1 even if it is assumed

though not admitted that there was prohibition, the respondent No.2 already

referred two names. The Enquiry Officer could have permitted the other

representative, but such recourse is not taken. On the contrary, it was

observed that in spite of several opportunities granted to respondent No.1,

the respondent No.1 is not submitting any representative. Shri

N.S.Khandewale, learned counsel made an attempt to submit before this

Court that respondent No.1 actively participated in the enquiry and even

examined certain witnesses, as such, no prejudice was caused to the

respondent No.1 by not permitting the respondent No.1 to be represented

through his representative / next friend. This submission of learned counsel

for the petitioners cannot be accepted at any stretch. The requirement of

8 909-WP-2220-15.odt

representative in the departmental enquiry is with the specific object namely

to assist the delinquent employee in the process of the enquiry. If such

provision is made and if the delinquent employee approaches the Enquiry

Committee submitting names of his representative and if on erroneous

presumptions and assumptions, the request of the delinquent employee is

turned down and in such a situation, if the delinquent employee left with no

choice but to participate in the enquiry on his own, then in this case, it is

certainly a breach of the relevant rules and moreover, it certainly causes a

serious prejudice to the delinquent employee.

9. Considering the above referred facts, I am of the opinion that the

learned Presiding Officer, University and College Tribunal, Nagpur

committed no error though, it was the submission of Shri N.S.Khandewale,

learned counsel that in the enquiry, the charges levelled against the

respondent No.1 were proved and as such, the order of the Presiding Officer

of University and College Tribunal, Nagpur is unsustainable. I am unable to

accept the submission, if the enquiry itself is faulty and if the delinquent

employee is deprived of proper representation and if there is breach of

principles of natural justices, the enquiry certainly is vitiated. Considering all

the aspects, I am of the opinion that no error is committed by the learned

Presiding Officer, University and College Tribunal, Nagpur in the Judgment

and order dated 03/12/2014.

9 909-WP-2220-15.odt

10. The petition thus, being meritless and deserves to be dismissed and the

same is accordingly, dismissed.

JUDGE

Choulwar