Bombay High Court
Pradnya Shankarrao Kale vs Principal Kohinoor Arts Commerce And ... on 1 December, 2023
2023:BHC-AUG:25168
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8624 OF 2018
WITH
CIVIL APPLICATION NO. 2603 OF 2019
IN WP/8624/2018
1) Principal,
Kohinoor Arts, Commerce
& Science College, Khultabad,
District; Aurangabad.
2) Mazarkhan Anwar Khan,
Age; Major, Occ; Secretary,
R/o; Kohinoor Education Society,
Kohinoor Villa, N-11, Plot No. 52,
Sector-L, HUDCO,
Aurangabad.
3) The Chairman,
Kohinoor Education Society,
Age; Major Occ; Chairman,
R/o; Kohinoor Villa, N-11,
Plot No. 52, Sector-L, ...PETITIONERS.
HUDCO, Aurangabad. (Orig. Res. Nos.3
to 5)
VERSUS
1) Dr. Pradnya d/o Shankarrao Kale,
J-A/19, N-12, HUDCO,
Aurangabad.
2) Dr. Babasaheb Ambedkar
Marathwada University,
Through its Registrar,
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University Campus,
Aurangabad.
3) The Director,
Board of College and University
Development, Dr. Babasaheb
Ambedkar Marathwada University,
University Campus,
Aurangabad.
4) The Director of Higher Education, ...RESPONDENTS.
M.S. Central Building, (Res. No. 1 is Orig.
Near Railway Station, Appellant & Resp.
Pune. Nos. 2 to 4 are Orig.
Respondents.)
....................................
Advocate for the Petitioners : Mr.V.J. Dixit, Senior Advocate i/b
Mr.Sushant V. Dixit.
Advocate for Respondent No. 1 : Mr. R.N.Dhorde, Senior Advocate
i/b Mr. Pravin S.Dighe.
Advocate for Respondent Nos. 2 & 3 : Mr. S.S.Thombre
A.G.P. for the Respondent No. 4/State : Mr.K.B.Jadhavar
...................................
CORAM : KISHORE C. SANT, J.
Date of Reservation : 25.09.2023
Date of Pronouncement : 01.12.2023.
JUDGMENT
1. Rule. Rule made returnable forthwith by consent of the
parties.
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2. The Management, running a College has filed this
petition challenging judgment and order dated 18.04.2018, passed
by the learned Presiding Officer, University and College Tribunal,
Aurangabad, allowing Appeal filed by respondent No. 1. Order of
termination dated 04.11.2016 is set aside and petitioners are
directed to reinstate respondent No. 1 to the post of Assistant
Professor with continuity in service and back wages from the date of
termination till her reinstatement.
3. The facts in short are that respondent No. 1 was
appointed with the petitioner after due selection to the post of
Lecturer in Psychology by order dated 27.04.2009. On 28.04.2011,
respondent No. 1 was confirmed in service after successfully
completing her probation period. By order dated 18.2.2012, the
University also granted an approval with effect from her
appointment. In June, 2014, she came to be appointed as Head of
the Department in Psychology Department. The University also
granted benefits to her under the Carrier Advancement Scheme.
4. It is the case of respondent No. 1 that the Secretary of
the petitioner started harassment and therefore, she was required
to make representation to the Principal of College. It was for that
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reason and because of grudge that she has made representations,
she was not allowed to sign muster and shown her as absent from
duty. Thereafter, she was required to report to the Board of College
and University Development (for short "B.C.U.D."), in respect of
arbitrary action and harassment at the hands of Management. On
receipt of said complaint, the University forwarded a representation
to the Principal for taking necessary action. It is because of this,
the Management got annoyed and started harassing more. The
Principal instead of taking action on the complaint of respondent
No. 1, sent a letter to the Joint Director, Higher Education, by
giving incorrect information under the pressure of Secretary and
the Management.
5. It is further case that because of these facts the
Management appointed an Inquiry Committee and started inquiry
against respondent No.1 under the name of "Satyashodhan Samiti".
Respondent No. 1 even raised an objection to the formation of the
aforesaid Committee, alleging bias on the part of the Chairman of
the Committee, however, the said is not considered. After formation
of the Committee, the Committee handed over her a copy of the
charge-sheet, prepared by the Committee. After conducting an
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inquiry, the Committee found respondent No. 1 guilty of the
charges and recommended her termination. The Management, on
the basis of report, terminated the services of respondent No. 1. It
is with this, challenging the said termination, respondent No. 1
approached the University and College Tribunal, by filing an appeal.
The learned Presiding Officer allowed the appeal and issued
direction to reinstate respondent No. 1 and to give benefits of
continuity of service and back wages. The petitioners have thus
approached this Court.
6. Learned Senior Counsel Mr. Dixit, submitted that the
petitioner Management is a minority educational institution.
Respondent No. 1 was appointed by following due procedure of law.
However, thereafter she started remaining absent without
permission and it is for this reason an action was taken against
her. The Committee was appointed as per communication received
from University/authority on the receipt of a complaint dated
27.04.2016 from respondent No. 1 to the B.C.U.D. The Principal,
therefore issued a notice on 14.07.2016 and appointed
"Satyashodhan Samiti" to inquire into charges. An action thus was
taken after affording an opportunity to respondent No. 1. Total 11
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charges were framed against her by the said Inquiry Committee.
7. Mr. Dixit, further submits that in appeal there was no
prayer for reinstatement and for back wages and it is only after the
amendment, the said prayer is inserted. There are no averments in
an appeal to the effect that she was not gainfully employed and still
the relief of back wages is granted. During the process, there was
an offer given to the respondent No.1 to compromise, however, the
said was not accepted by respondent No. 1. The finding of the the
University and College Tribunal, about bias in the mind of the
Members of the Committee is without any material. During an
inquiry, respondent No. 1 could not show that she was not absent.
Even her medical certificate was not in proper form. He submits
that the finding of the learned Presiding Officer recorded are
perverse about the statements recorded before the Inquiry
Committee. Further the finding of the learned Member about the
statements of the persons recorded is also perverse. He ultimately
submits that if the University and College Tribunal, was not
satisfied with the manner of inquiry the University and College
Tribunal, ought to have directed 'De-Novo' inquiry afresh, instead of
setting aside the termination order. He relied upon the following
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judgments :
1) AIR 2018 SC 4534 - Rajasthan State Road
Transport Corporation, Jaipur Vs. Phool Chand
(Dead) Through Lrs.
2) 2014 (3) Mh.L.J. 524 - Chairman, LIC of India
and Ors. vs. A. Masilamani.
3) 1994 AIR (SC) 1074 - Managing Director, Ecil,
Hyderabad Vs. B. Karunakar.
4) 2014 (4) Mh.L.J. 556 - Manohar Pandit
Marathe Vs. President Sharda Vidya Prasarak
Mandal.
8. In reply, learned Senior Counsel Mr. R.N.Dhorde for
respondent No. 1 submits that respondent No. 1 was constrained to
lodge FIR on 12.10.2016 against the Secretary of the Management
for the offences punishable under Section 354-A, 504 read with 34
of the Indian Penal Code. He submits that an Inquiry Committee's
report shows that no proper procedure is followed. The
Management did not even issue a show cause notice before holding
an inquiry.
9. The learned Senior Advocate Mr. Dhorde, submits that
an inquiry process followed by the management was against law.
The Committee itself was formed on the basis of complaint made by
respondent No. 1 to the University. The said Committee could not
have held inquiry against the respondent. The committee appointed
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on the complaint of respondent No. 1 turned into an Inquiry
Committee. He further submits that a copy of compilation along
with proceeding book had also been produced on record. This Court
has seen and gone through the said compilation.
10. Respondent No. 1 complained to the University first in
respect of alleged harassment meted to her at the hands of the
Secretary and the Management. As no cognizance was taken by the
Management into those complaints she was required to file a
complaint to the University Authorities. It is thus the University,
which was required to request the Management to hold an inquiry.
He invited attention to the communication dated 25.4.2016 issued
by respondent No. 1 to the Principal, in which she has clearly
stated that the Principal has even refused to accept an application
and she was required to sent the communication through E-Mail
and because of that she made representation to the University
authority vide communication dated 06.05.2016.
11. Respondent No. 1 even had to approach to police by
filing complaint against the Secretary and President of the
Management about sexual harassment. It was the specific objection
against the Chairman of the Inquiry Committee Mr. Ambhore. The
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Secretary of the Management has done Ph.D. under the guidance of
Mr. Ambhore and for this reason she expressed her concern about
bias in the mind of Chairman of the Committee, however, said was
not considered. From the proceedings, he submits that she has
produced material about another member Mr. Mhaske, who
completed his Ph.D. under the guidance of Chairman,
Mr. Ambhore. The charge-sheet is not issued by the Management
but it is issued by the Committee, which is unknown to law. When
the Committee was formed at the instance of the University on a
complaint of Respondent, there was no question of the Committee
holding inquiry against respondent No.1. An inquiry is thus without
jurisdiction. The entire proceedings before the Committee shows
that it was conducted with malafide intention. On realizing that
there was no prayer for back wages amendment was carried out by
inserting a specific prayer. At no point of time, the Secretary of the
Management denied any charges before the Tribunal, who happens
to be the Secretary of the Management i.e. present petitioner No.2.
Thus, the allegations against him are not denied. He relied upon
NAAC Committee report, showing that it was observed in the report
that there was no formation of 'Vishakha Committee' under Section
3 and 4 of the Sexual Harassment of Women at Work Place
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(Prevention, Prohibition and Redressal) Act, 2013.
12. The University and College Tribunal has rightly observed
that Mazahar Khan, the Secretary of Management has not denied
allegations against him. He supported the finding that even a memo
was not issued by the Management before holding an inquiry. It
was necessary to give a copy of statement of allegations and call for
an explanation before holding an inquiry. An Inquiry Committee
was appointed without following procedure established by law. He
submits that the statements considered by the Inquiry Committee
of one of the in-charge member, who allegedly submitted statement
in person and had not even signed the said statement. The
documents were also not made available to the respondent No. 1.
The dates on the statements even show that those were recorded
after the submission of report. None of the statements bear
signatures of the Committee Members. Nothing is on record to show
that respondent No. 1 was given an opportunity to cross-examine
those witnesses. There is no resolution about the appointment of
the Committee. No show cause notice was given. Thus, he submits
that no procedure is followed and thus the learned University and
College Tribunal has rightly passed the judgment and no
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interference is called for. He submits that there was an affidavit
filed before the Tribunal stating that respondent No. 1 was not
gainfully employed. He relied mainly upon the following judgments :
1) (1997) 6 SCC 241 - Vishaka and others Vs. State of
Rajasthan and Others.
2) (2013) 6 SCC 515 - Anant R. Kulkarni Vs. Y.P.
Education Society and Others.
3) 1970 (3) SCC 548 - Surath Chandra Chakarabarty Vs.
State of West Bengal.
4) (2013) 10 SCC 324 - Deepali Gundu Surwase Vs. Kranti
Junior Adhyapak Mahavidyalaya (D. ED.) and Others.
5) 2022 SCC Online 283 - Puri Investments Vs. Young
Friends and Co. and Others.
13. In rebuttal Mr. Dixit, learned Senior Counsel submitted
that there was no complaint made to the College about sexual
harassment and the complaints shown were not in respect of sexual
harassment. The alleged incidents of sexual harassment were
shown eight months prior to the lodging of the complaint before
police. He submits that there is no substance in the submission
that because of the complaints of sexual harassment the
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management had initiated an inquiry. The complaint to police was
also made after conclusion of inquiry. The report was submitted on
05.10.2016, where as, complaint to police was made on
12.10.2016. The judgment in Vishakha (supra) is not applicable.
An inquiry was only in respect of absenteeism of respondent No. 1
and deduction of her salary. He submits that as per judgment
reported in 2007 (3) Mh.L.J. 801 the management be directed to
constitute Committee and to look into the matter afresh. This Court
finds that there is no substance in the submissions.
14. On considering all the facts, what is clearly seen is that
respondent No.1 had earlier made complaint to the Principal,
however, the same was not accepted and she was required to sent
the said complaint by E-Mail. Inspite of said complaint, no
cognizance was taken by the Principal and the Management and for
that reason she was required to approach the authorities of the
University. It is the University authority which directed the
Management/Principal to look into the matter. It is upon that the
Committee headed by Mr. Ambhore was formed. The charge-sheet
was also issued by the Committee and not by the Management. No
any procedure was followed prior to appointment of Committee. So
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far as the allegations against the Secretary of the Management are
concerned, though he was party before the Tribunal, he has not
denied the allegations against him. Even the statements shown to
have been recorded before the Committee does not bear the
signatures of those persons and also of the Members of the
Committee. The petitioner could not point out as to how the
observations of the Tribunal are perverse or incorrect. Nothing is on
record and it is not even the statement of the petitioner that prior to
appointment of the Committee any procedure was followed such as
issuance of show cause notice or otherwise. The charges were
framed by the Committee itself and not by the Management. The
charge-sheet issued was also issued by the Committee itself. It is
not disputed that the Secretary of the Management has done Ph.D.
under the guidance of the Chairman/Mr.Ambhore. There is also
one another fact that another Member Mr. Mhaske also completed
his Ph.D. under the guidance of Mr Ambhore. It is further seen that
no documents were supplied to respondent No. 1, inspite of her
demands. Thus, there is also violation of Section 8 (12) (13) (14) of
the Maharashtra Civil Services (Disciplinary and Appeal) Rules,
1979. It is now well settled that non supply of documents to the
employee causes serious prejudice to the rights of such employee as
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he cannot take his defence properly. Thus, there is clear violation
of principles of natural justice. There is nothing on record to show
that respondent No. 1 was offered an opportunity to cross-examine
the witnesses and it is the employee who has not availed such an
opportunity. The learned Tribunal has rightly considered the ratio
in the case Surath Chandra (supra), in respect of vague charges.
The entire approach of the Committee and Management is clearly
perverse.
15. In the case of Chairman LIC India (supra) an inquiry
was conducted by the employer. In an inquiry proceedings the
witnesses were not examined in presence of the delinquent. The
delinquent could not therefore cross-examine such witnesses. The
documents relied upon by the inquiry officer were also not properly
proved. The High Court therefore, held that the finding of the
inquiry officer stood vitiated for non compliance with the mandatory
requirements of the regulations applicable and also for the reason
that it was violation of principle of natural justice, the Hon'ble Apex
Court held that in such cases when the Court set aside an order of
appointment holding that an inquiry was not properly conducted,
the Court cannot reinstate the employee. The Court must remand
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the concerned case to the Disciplinary Authority for conducting
inquiry from the point that it stood vitiated and conclude the same.
This Court finds that in the present case the learned Presiding
Officer of the College Tribunal formed an opinion that an inquiry
was totally illegal. In the present case, from the record it is clear
that the entire exercise of the Management was actuated with
malafide. There was total lack of jurisdiction with the Inquiry
Committee. It is not the case that there were technical faults in
conducting an inquiry. This Court therefore, finds that in the
present case the learned Tribunal has rightly exercised the
jurisdiction and has rightly passed the order.
16. This Court finds that in view of finding, there is
substance in the submission of learned Senior Counsel Mr. Dhorde
that the management instead of holding inquiry in view of
complaints of harassment of respondent No. 1, has with malafide
intention made false inquiry. The Committee has also arrived at
finding without sufficient material. The Committee was formed
without following any procedure. The Committee has no jurisdiction
to hold the inquiry. The malafides are further clear from the fact
that even copy of the charge-sheet was not issued by the
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Committee.
17. Mr. Dhorde, learned Senior Counsel relied upon the
judgment reported in Anant R. Kulkarni (supra). that it is not
necessary in every case to hold a fresh inquiry. He further relied
upon Vishaka and others (supra) So far as back wages are
concerned, he rightly relied upon the judgment in the case Dipali
Gundu Surwase (supra). He also further relied upon the judgment
Puri Investments (supra) in respect of powers of the Court under
Section 227 of the Constitution of Indian
18. Mr.Dixit, learned Senior Counsel relied upon the
Rajasthan State (supra). In that case the Hon'ble Apex Court
observed that the back wages cannot be granted as a matter of
right.
19. So far as the submissions in respect of back wages are
concerned, this Court finds that there was affidavit before the
College Tribunal stating that she was not gainfully employed during
the period . This Court, finds that the learned Tribunal has rightly
considered all these aspects and has passed an order. No
interference is called for. The Writ Petition is dismissed. Rule is
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discharged.
20. In view of disposal of Writ Petition, pending Civil
Applications if any stand disposed off.
( KISHORE C. SANT )
JUDGE
21. At this stage, learned Advocate for the petitioner makes
a prayer to continue the stay granted by this Court. The learned
Advocate for the respondent vehemently opposes the prayer. He
pointed out that by subsequent order dated 05.12.2022, this Court
had directed the petitioner to deposit the amount of Rs.10 lacs in
this Court. However, same was not done. By order dated
25.01.2023 the petitioner sought time to comply with order dated
05.12.2022. Time of six weeks was granted. However, even
thereafter no amount was deposited. By order dated 14.03.2023
this Court has recorded that the petitioners have consistently
refused to comply the interim order passed by this Court and
affidavit was directed to be filed. Inspite of that, no affidavit is filed.
This Court finds that in such a case the petitioner cannot claim any
equitable relief. This Court has seen orders dated 05.12.2022,
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25.01.2023 and 14.03.2023. In view of the conduct of the
petitioners that they have not even obeyed interim order passed by
this Court, this Court finds that no prayer need be entertained. The
request is, therefore, refused.
( KISHORE C. SANT )
JUDGE
mahajansb/
