Dr. Pradeep S/O Anandrao Pawar vs Sant Gadge Baba, Amravati ...
2022 Latest Caselaw 10332 Bom

                           -1-         273.WP.2535.2012. Judgment.odt



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

         WRIT PETITION NO. 2535 OF 2012


PETITIONER            :     Dr. Shri Pradeep S/o Anandrao Pawar,
                            Aged about - 49 years, Occu. -
                            Service, R/o. A-202, Dewarshi
                            Apartment, Mangilal Plot, Camp,
                            Amravati - 444602.

                                  //VERSUS//

RESPONDENTS           : 1. Sant Gadge Baba, Amravati
                           University, Amravati, through its
                           Registrar, having its office at Sant
                           Gadge Baba Amravati University
                           Campus, Amravati.

                          2. Registrar Sant Gadge Baba, Amravati
                             University, Amravati.

                          3. Joint Director, Higher Education,
                             Amravati Division, Amravati.


**************************************************************
  Mrs. R.D. Raskar, Advocate for the Petitioner.
  Mr. R.N. Badhe, Advocate for Respondent Nos. 1 & 2.
  Mr. N.S. Rao, AGP for Respondent No.3.
**************************************************************

     CORAM :        SUNIL B. SHUKRE AND
                    G.A. SANAP, JJ.

DATE : 7th OCTOBER, 2022.

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ORAL JUDGMENT (Per: Sunil B. Shukre, J.)

Heard learned counsel for the parties.

02] The petitioner has challenged the legality and

correctness of the suspension order dated 20th March, 2006 and

also the order of punishment dated 20th September, 2010.

03] The petitioner was appointed as a Reader on

04.04.1998 in respondent No.1 University. The petitioner also

served as Guide for students. In February 2006, the Vice-

Chancellor of the respondent No.1 University received two

complaints from parents of two girl students. These complaints

revolved around the allegation of misbehaviour and indecent

behaviour of the petitioner with these two girls. The complainants

had also alleged that they suspected that the petitioner was

intending to outrage modesty of their respective daughters.

Taking cognizance of these complaints and after making diligent

enquiry into the allegations, the suspension order was issued to

the petitioner on 20th March, 2006. Before that, a show cause

notice was also issued to the petitioner, which was duly replied by

him. After issuance of the suspension order, departmental enquiry

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was initiated. In all, eight charges were levelled against the

petitioner. These charges were as given below:

"(i) Charge no.1- misbehavior with girl students;

(ii) Charge no.2- insulting behavior with girl students;

(iii) Charge no.3: making the girl students seat unnecessarily for a long time in his office.

(iv) Charge no.4: calling the girl students at home and asking his son to teach the girl students;

(v) Charge no.5: Offering gifts to the girl students;

(vi) Charge no.6- forcing the girl students to come along with him in his car for freaking out.

(vii) Charge no.7: Sitting idly in girl students' room and calling on the mobiles of the girl students and making personal talks with respect to the crisis in personal life;

(viii) Charge no.8: calling the girl students at home under the pretext of preparation of papers for presenting Seminar and taking them forcibly in internet cafe in his car;

(ix) Charge no.9: forcibly asking for fee of Rs. 200/- to start library;

(x) Charge no.10: that, the students are reluctant to attend his class."

04] The Enquiry Officer, upon completion of enquiry,

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found that only Charge Nos.7, 9 and 10 were fully proved and

Charge No.8 was partly proved and it was to the extent of calling

the girl students to the house of the petitioner under the pretext

of preparation of papers for presentation at the seminar and the

remaining part of the charge relating to forcing the girl students to

accompany the petitioner in his car to internet cafe, was held to be

not proved. Upon its due consideration, the report was accepted

by the Disciplinary Authority i.e. the Vice-Chancellor of

respondent No.1 University and by the other impugned order

dated 17th February, 2007, the punishment of permanent

stoppage of two annual increments payable to the petitioner and

treating the suspension period as period of absence and leave

without pay was inflicted upon the petitioner.

05] According to Mrs. Raskar, learned counsel for the

petitioner, the procedure adopted for holding of departmental

enquiry against the petitioner since its inception, was full of

procedural flaws and irregularities which vitiated the entire

enquiry. She submits that even the show cause notice dated 28 th

February, 2006, which was required to be issued by the

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Competent Authority i.e. the Vice-Chancellor of the University,

was issued by Registrar of the University. She also submits that

since the main charge of indecent behaviour with girl students was

not proved, there was no justification for inflicting of major

punishment, like permanent stoppage of two increments upon the

petitioner. She also submits that there was no reason for the

Disciplinary Authority to impose another punishment for treating

the suspension order as period of unauthorised absence of the

petitioner. She also submits that the petitioner has now retired on

30th September, 2022.

06] Mr. Badhe, learned counsel appearing for respondent

Nos.1 and 2, supporting the order of suspension and also the final

order inflicting punishment upon the petitioner, submits that

there is ample material available on record, which would support

the conclusions drawn by the Enquiry Officer and which have

been accepted rightly by the Disciplinary Authority. In support,

he has taken us to the enquiry report and also the statements of

the witnesses. He further submits that before issuing suspension

order, the preliminary enquiry was conducted by the Vice-

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Chancellor and it was found by the Vice-Chancellor that the

complaints made against the petitioner were of very serious nature

damaging the image of the University and the petitioner had

prima faice committed breach of provisions of Chapter VII of the

University Ordinance No.122 requiring a detailed enquiry by

suspending the petitioner and by appointing Enquiry Officer for

making an enquiry into the allegations. He, therefore, submits

that the suspension order served upon the petitioner was not

without any reason and therefore, the punishment awarded by the

Disciplinary Authority regarding the suspension period be treated

as the period of unauthorized absence, is correct. He also points

out from Section 49 of the University Ordinance No.122 that the

punishment of withholding of increments permanently awarded

to the petitioner is only at Serial No.2, placed just below the first

punishment of censure, which sufficiently indicates that the

punishment is a minor punishment. He submits that in Section

49, there are in all eight kinds of punishments described and these

punishments increase in their gravity as one goes down the order

of the punishments. It is, therefore, submitted that there is no

need to make any interference with the impugned order.

-7- 273.WP.2535.2012. Judgment.odt

07] Upon oral consideration of the material available on

record and also the reasons given by the Enquiry Officer as well as

the Disciplinary Authority, we do not find that there is any grave

illegality having been committed by the Enquiry Officer or the

Disciplinary Authority in appreciating the evidence available on

record. In fact, the evidence, which has been brought on record by

the Presenting Officer is suggestive of serious misconduct on the

part of the petitioner. We further find that the Enquiry Officer has

adopted a view, which is completely based upon the evidence

available on record and therefore, his finding that only Charge

Nos.7, 9 and 10 are fully proved and Charge No.8 has been partly

proved, cannot be said to be perverse or an impossible view. It is

well-settled law that while exercising the power of judicial review

in such cases, it is not permissible for this Court to take a view

different from the view taken by the Disciplinary Authority, when

two views are possible. In this case, the Disciplinary Authority has

also accepted the view taken by the Enquiry Officer regarding not

proving and proving of some of the charges and this view having

already been noted by us to be not perverse, we would not like to

strike a different note in respect of the same.

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08] As regards the objection taken by learned counsel for

the petitioner that there have been several procedural

irregularities and even the show cause notice has not been issued

by the Competent Authority, we find that there are no such major

irregularities as would have caused serious prejudice to the

petitioner in defending himself in the enquiry. Even the show

cause notice cannot be said to be issued in violation of any

provision of law, for the reason that even though it is signed by

the Registrar of the University, the same was issued under the

directions of the Disciplinary Authority. This fact is specifically

stated in the show cause notice. Ultimately, the underlying

principle of the proposition that show cause notice must be issued

by the Competent Authority is that the Competent Authority

must know that there is some case prima facie made out against

the delinquent employee and also his application of mind to the

allegations made against the delinquent employee and the need

for holding of the departmental enquiry against him. These

requirements of law are seemed to be fulfilled in the present case,

when we consider the fact that the show cause notice has been

issued under the order of the Vice-Chancellor. Thus, we find no

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substance in the objection taken on behalf of the petitioner in this

regard.

09] About the submission that the penalty of stoppage of

two increments permanently is a major penalty, which is

shockingly disproportionate to the charges proved against the

petitioner, again we find ourselves in respectful disagreement with

the learned counsel for the petitioner. In fact, as we see from the

provisions under Section 49 of the University Ordinance No.122,

the punishment awarded to the petitioner with its low ranking in

the order of gravity as prescribed therein cannot be said to be a

major penalty by any stretch of imagination. This can be seen

from the arrangement of the punishments made in Section 49 in

terms of their gravity. For the sake of convenience, Section 49 of

the University Ordinance No.122 is reproduced as below:

"49. Punishment to be given by the competent authority shall be as under: -

(i) Censure;

(ii) Withholding of increments or promotion, including stoppage at an efficiency bar,

(iii) Reduction to a lower post or time-scale or to a

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lower stage in a time-scale;

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to the University by negligence or by breach of orders;

(v) Suspension;

(vi) Removal from service of the University, which does not disqualify from future employment;

(vii) Dismissal from service of the University, which ordinarily disqualifies from future employment;

(viii) Fine to be deducted from salary.

10] It would be clear from the arrangement of the

punishments made in Section 49 that the seriousness and gravity

of each punishment increase as one goes down the order of these

punishments. First ranking is given to such punishment as

censure and second ranking is given to the punishment of

withholding of the increments or promotion, including stoppage

at an efficiency bar. Third ranking has been given to reduction to

a lower post or time-scale or to a lower stage in a time-scale. Thus,

the seventh and eighth ranking, which are at the bottom of these

punishments, have been given to the punishments of dismissal

from service and fine to be deducted from salary. This

arrangement of punishments in Section 49 is indicative of the

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principle that earlier the punishment in the order of punishments,

less serious and less grave is the punishment. Therefore, at the cost

of repetition, we would say that the punishment of withholding of

increments or promotion, including stoppage at an efficiency bar

is a punishment which cannot, by any stretch of imagination, be

termed to be a major penalty.

11] So, we find that the punishment of stoppage of

increments awarded to the petitioner is a minor penalty and

whenever a minor penalty has been imposed upon an employee

for his proved misconduct, it cannot be said to be "shockingly"

disproportionate to the misconduct of the employee. The

shocking nature of disproportionality would be something when

for a minor misconduct, major penalties have been imposed. This

is not so in the present case and therefore, to the extent of

infliction of penalty or stoppage of two increments permanently

upon the petitioner, we are not inclined to interfere with the final

order.

12] About the objection taken to the suspension order

also, we find from the order passed by the Vice-Chancellor that

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before the suspension order was actually issued to the petitioner,

the Vice-Chancellor recorded that it was based upon the material

then available before him and his recording of prima facie

satisfaction about the gravity of allegations made against the

petitioner and the need for putting the petitioner under

suspension. The allegations, when we consider the complaints of

two parents, which are available on record, were indeed serious in

nature and therefore, there was nothing wrong on the part of the

Vice-Chancellor to issue an order of suspension of the petitioner

to meet the situation which existed at that point of time.

Therefore, we are not inclined to make any interference with the

suspension order at this stage of the proceedings.

13] However, the question would remain as to whether or

not the Vice-Chancellor was justified in treating the period of

suspension as period of unauthorised absence. We are of the view

that there was no justification whatsoever that was available with

the Vice-Chancellor to treat the period of suspension as period of

unauthorised absence - the reason being that the suspension order

was issued mainly on the ground of alleged indecent behaviour of

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the petitioner with girl students and the charges that were framed

against the petitioner about these allegations have not been found

to be proved by the Enquiry Officer and such a finding recorded

by the Enquiry Officer has also been accepted by the Vice-

Chancellor, the Disciplinary Authority. Once the Disciplinary

Authority is satisfied that the charge of indecent behaviour with

girl students which is the ground on which the suspension order is

based, has not been proved against the petitioner, there is no

justification for the Disciplinary Authority to treat the period of

suspension as period of unauthorized absence from duty of the

petitioner. To that extent, therefore, we find that the impugned

order of punishment is illegal and requires interference for this

purpose only.

14] In the result, we partly allow the writ petition. We

hold that no interference with the punishment of stoppage of two

increments permanently awarded to the petitioner is warranted.

However, we hold that the other part of the final order of

punishment dated 17th February, 2007 treating the period of

suspension of the petitioner as his period of unauthorised absence

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from duty is unwarranted and illegal and therefore, to that extent,

the impugned order dated 17th February, 2007 is hereby quashed

and set aside. We direct the respondent No.1 - University to

regularize the period spent by the petitioner during his suspension

by granting him special leave for that period. Needless to say, the

petitioner would be entitled to receive all benefits consequent to

regularisation of his period of suspension as above.

15] The rule is made absolute in the above terms. No

costs.

                                  (G.A. SANAP, J.)             (SUNIL B. SHUKRE, J.)



                  Vijay




Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Signing Date:11.10.2022 18:47