Bombay High Court
Kumar Keshaorao Kale vs Shri Shivaji Education Society, ... on 4 September, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
LETTERS PATENT APPEAL NO. 316 OF 2009
with
LETTERS PATENT APPEAL NO. 441 OF 2009
IN
WRIT PETITION NO. 2236 OF 1999
.................
LETTERS PATENT APPEAL NO. 316 OF 2009
APPELLANT : Kumar Keshaorao Kale,
Aged about 68 years, Occu. Retired Principal,
College of Engineering & Technology, Akola,
R/o 10, Hare Ram Hare Krishan Society,
Opp. Utsav Mangal Karyalaya,
Jatharpeth, Akola.
VERSUS
RESPONDENTS : 1] Shri Shivaji Education Society,
Amravati, through its President,
2] Shri Shivaji Education Society,
Amravati, through its Secretary,
3] Presiding Officer,
University and College Tribunal,
Nagpur University Law College Campus,
Nagpur.
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Mr. M.M. Sudame, Advocate for the appellant
Mr. Abhay Sambre, Advocate for respondent nos.1 and 2
Mr. K.L. Dharmadhikari, A.G.P. for respondent no.3
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WITH
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LETTERS PATENT APPEAL NO. 441 OF 2009
APPELLANTS : 1] Shri Shivaji Education Society,
Amravati, through its President,
2] Shri Shivaji Education Society,
Shivaji Nagar, Amravati
through its Secretary,
VERSUS
RESPONDENTS : 1] Kumar Keshavrao Kale,
Aged about 58 years,
Assistant Professor in Artichetec,
College of Engineering & Technology, Akola,
R/o "Pradnya", B-1, Sudhir Colony,
Akola - 444 005, Tq. and Dist. Akola.
2] Presiding Officer of
University and College Tribunal,
Nagpur University, Nagpur.
----------------------------------------------------------------------------------------------
Mr. Abhay Sambre, Advocate for the appellants.
Mr. M.M. Sudame, Advocate for respondent no.1
Mr. K.L. Dharmadhikari, A.G.P. for respondent no.2
----------------------------------------------------------------------------------------------
CORAM : B. P. DHARMADHIKARI and
ARUN D. UPADHYE, JJ.
DATE : SEPTEMBER 04, 2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J.)
The judgment delivered by the learned Single Judge of
this Court on 08.6.2009 in Writ Petition No. 2236/1999 form the
subject matter of both these Letters Patent Appeals. L.P.A.
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No.316/1999 is by the employee, who seeks restoration of the
judgment delivered by the College Tribunal in his favour. L.P.A.
No.441/2009 is by the employer, who seeks dismissal of the appeal
filed by the employee before the College Tribunal.
2] The College Tribunal at Nagpur is joined here as
respondent No.3 and respondent no.2, respectively. It has decided
Appeal No. A-5 of 1996 on 19.2.1999. The operative part of this
judgment reads as under :
ORDER
"The appeal succeeds. The impugned order of
demotion dated 12.3.1996 is hereby quashed and set
aside. The appellant shall stand restored to his position
as the Principal of the College with entitlement to all
benefits of salary and other dues from the date of the
order of demotion. All such arrears as would thus be
due to the appellant shall be paid by the respondents
within a period of three months from the date of this
order."
3] The learned Single Judge, in Writ Petition No.
2236/1999 after hearing the parties, has substituted the same by
following directions -
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"15. In view of this, the petition is partly allowed. The
impugned order, in so far as it directs payment of arrears
of salary from the date of demotion, is set aside and
substituted by the following.
16. Respondent no.1 would be paid the difference of
salary to which he would be entitled but for his demotion,
and the salary which he would have been entitled to
receive upon his demotion, from the date of his demotion
till the date on which he would have ordinarily retired on
superannuation. Respondent no.1 has already received
certain amounts deposited by the petitioners in terms of
interim orders by this Court. If the amounts so received do
not exceed the amount due by a sum less than Rs.25,000/-
the same shall not be recovered, considering the expenses
that respondent no.1 must have incurred in fighting
against his wrongful demotion."
Thus, the learned Single Judge finds the employee entitled to receive
difference in salary in the post of Assistant Professor and Principal.
4] The employee has already superannuated from
employment as he reached that age on 31.3.2002. The employer
has, after departmental enquiry, inflicted upon him punishment of
demotion as Assistant Professor on 12.03.1996. Thus, in view of
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superannuation, this adjudication may have impact on treatment to
be accorded to the status of the appellant and therefore, quantum of
his wages between 12.03.1996 to 31.3.2002.
5] The facts not in dispute are that after an advertisement
for the post of Principal dated 07.12.1984, the employee was
selected after considering his application and after interview by the
duly constituted Selection Committee. He was appointed as a
Principal on 17.5.1985.
6] It appears that for various charges, a charge-sheet was
served upon the employee on 06.6.1990. He was already placed
under suspension from 01.1.1990. There were total nine charges
and charge no.1 is about misappropriation under four different
heads. Charge no.2 was regarding mis-management. After
completion of enquiry, the Inquiry Officer found all nine charges
proved. Because of this, punishment of demotion to the post of
Assistant Professor was inflicted upon him.
7] Both the learned counsel for the petitioners fairly state
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that some proceedings in relation to this enquiry or punishment were
filed by the employee in-person before the Industrial Court at
Amravati. The Industrial Court there directed the employer to
deposit salary of the employee as Assistant Professor for the period
from 12.03.1996 and the employer claims that, it has been so
deposited for over a period of three years. Both the learned counsel,
however, are not in a position to explain the fate of the proceedings
before the Industrial Court or then, whether said amount was
withdrawn by the employee or by employer.
8] We have heard Mr. Sambre, learned counsel for the
employer, Mr. Sudame, learned counsel for the employee and Mr.
Dharmadhikari, learned Assistant Government Pleader for the
Tribunal.
9] Mr. Sambre, learned counsel for the employer submits
that as the charges are of misappropriation or mismanagement or
then providing employment unauthorizedly to a person on a non-
existing post, no relief could have been given. Without prejudice, he
has invited our attention to the prayers in the memo of appeal before
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the College Tribunal to demonstrate that there, no back wages have
been prayed for. He contends that in absence of such prayer, the
back wages could not have been awarded. According to him, the
learned Single Judge also in this situation could not have asked the
employer to pay even difference in salary for the post of Principal
and Assistant Professor. He contends that the said direction is
unsustainable and without jurisdiction.
10] Mr. Sudame, learned counsel for the employee points
out that earlier, the advocates were not permitted to appear before
the College Tribunal and the matter was fought in-person by the
employee. He, therefore, did not make prayer expressly for back
wages. He, however, points out that even the contention about non-
availability of punishment of reversion/demotion was not advanced.
That ground was taken in the writ petition before the learned
Single Judge and the learned Single Judge has found that such
punishment upon a direct recruit is legally not sustainable. Mr.
Sudame, learned counsel explains that the learned Single Judge,
however, has erroneously interpreted the interim orders dated
28.6.1999 in Writ Petition No. 2236/1999. The said orders only
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permitted the employee to join on the post of Assistant Professor and
there was no positive direction to him to report for duty on that post.
As, a Principal could not have been reverted to the lowest post in
teaching cadre, there was no question of the employee joining on
that post. He submits that in absence of specific direction, the order
dated 28.6.1999 could not have been used by the learned Single
Judge to restrict entitlement of the employee only to the difference in
salary.
11] After hearing the respective counsel, we find that the
employee was working in a private unaided engineering college.
After superannuation, he does not get any pension.
12] It is also not in dispute before us that after
superannuation, the departmental enquiry could not have been
proceeded or reopened against the employee.
13] A perusal of the judgment delivered by the College
Tribunal reveals some important observations from paragraph 13
onwards. In paragraph 13, the College Tribunal has noted that the
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manner of conducting enquiry has resulted in grave injustice to the
employee, who was appellant before it. On his application, the
Inquiry Officer passed an order, dated 14.4.1990 and observed that
the management need not produce the documents for the period
subsequent to 01.1.1990 i.e. the date on which the employee was put
under suspension. However, the very same Inquiry Officer while
recording findings and concluding that the charges are proved, did
rely upon the documents, which were of a subsequent period. Those
documents are also specified by the College Tribunal. It appears that
those documents were the audit reports. Similarly, while considering
charges at serial nos. 4, 5 and 6, the College Tribunal finds that all
the documents were subsequent to said date of suspension. It has
also found that a very large number of documents demanded by the
employee to meet the charges, were not directed to be produced by
the Inquiry Officer. The College Tribunal found that fairly a large
number of documents, though not all of them, dealt with the charge
pertaining to alleged illegal and irregular admissions granted by the
employee. In paragraph 14, it has looked into non-production of the
documents requested by the employee, though there was a direction
by the Inquiry Officer to produce. The applications dated 13.8.1990
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and 23.8.1990 moved by the employee and the orders passed by the
Inquiry Officer together on it directing production of 30 documents is
also looked into and the College Tribunal has taken note of the fact
that those documents were not supplied to him despite the order of
the Inquiry Officer. Though, the management claimed that certain
documents were handed over to him, it could not produce any
acknowledgement to substantiate the same.
14] With this discussion, we find it proper to look into the
discussion by the College Tribunal on charge no.5. Some discussion
in paragraph 22 of the judgment of College Tribunal shows that the
person provided employment was the son of previous Vice President
of the employer Education Society and the appointment was given at
the instance of the Vice President Shri Khotare of the employer trust.
15] This discussion is sufficient to show that the enquiry
conducted against the employee cannot be said to be fair and valid.
The College Tribunal ought to have framed an issue regarding
validity of departmental enquiry first and as that has not been done,
its evaluation regarding fairness of departmental enquiry and on
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perversity of findings, appear together in its judgment dated
19.2.1999. The moment enquiry is found to be vitiated, the findings
and material on record of departmental enquiry cannot be looked
into.
16] The course adopted by the College Tribunal was not
objected to either by the employee or by the employer. Even in writ
petition filed before the learned Single Judge, no objection to this
procedure was raised. The employee through his counsel only
pointed out impermissibility of punishment of reversion in his case as
he happened to be a direct recruit.
17] The learned Single Judge has considered all the
arguments while delivering the impugned judgment. The judgment
is delivered on 08.6.2009 i.e. more than seven years after
superannuation of the employee. As no leave to employer to hold
departmental enquiry again, either de novo or from the stage of
defect, is possible in this matter, with above defects in the
departmental enquiry, we have to appreciate the impugned judgment
delivered by the learned Single Judge on 08.6.2009.
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18] After looking into the entire material, the learned Single
Judge has found that the charges cannot be said to have been
established. While considering objection to grant of full back wages,
absence of expressed prayer and material to demonstrate absence of
gainful employment has been looked into. The learned Single Judge
has also noticed the order dated 28.6.1999 passed by this Court in
Writ Petition No. 2236/1999 permitting employee to report as
Assistant Professor. In that background, it has also referred to the
legal position that when enquiry is found to be vitiated or
punishment is set aside, full back wages must follow. Thus, after
looking into all relevant aspects, it has found it proper to restrict the
benefit to the amount of difference in salary payable as Assistant
Professor and as Principal.
19] In statutory appeals in disciplinary matters, back wages
are not awarded because of its loss or its damages to the employee.
The back wages are not awarded when it is established that the
employee had some other gainful employment. Here, we are dealing
with a much superior and higher post of Principal. The incumbent
employee had option to work as Assistant Professor. The knowledge
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that he could not have been reverted as Assistant Professor at all, has
come to him only after filing of writ petition before this Court. He
may have recovered wages as Assistant Professor also, as the
employer deposited the amount thereof with the Industrial Court at
Amravati for the period in excess of three years at his behest. In this
situation, his refusal to physically work needs to be taken note of to
deny him full back wages. Difference in salary only is rightly granted
to him.
20] At this stage, our attention is invited to the fact that
certain amount is deposited and is lying with the Registry of this
Court. This is apparent from paragraph 3 of the judgment dated
08.6.2009 in Writ Petition No. 2236/1999. Mr. Sudame, learned
counsel seeks leave to withdraw that amount. Mr. Sambre, learned
counsel is opposing him. According to him, if the amount paid
before the Industrial Court is already withdrawn by the employee,
amount with this Court may not at all be payable to him. He is,
therefore, seeking time to find out the exact position.
21] As we have recorded above that the fact of proceedings
before the Industrial Court is not known to the respective counsel,
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we, therefore, grant the employee / employer leave to move
appropriate application for withdrawal of amount lying in deposit
with the Registry of this Court and Industrial Court. If such
application is moved, all these issues shall be looked into at that
juncture.
22] Because of defects in departmental proceedings, appeal
of the employer can not be allowed. Similarly, full back wages also
cannot be given to the employee. Taking overall view of the matter,
we are satisfied that the ultimate relief given by the learned Single
Judge to the employee cannot be said to be either erroneous or
perverse. In substance, we find no case made out in either of the
appeals warranting our intervention. Both these Letters Patent
Appeals are, therefore, rejected. No costs.
JUDGE JUDGE
Diwale
