Deelip Bapu Pawar vs The Principal, Venkatesh ...
2024 Latest Caselaw 24323 Bom

Bombay High Court

Deelip Bapu Pawar vs The Principal, Venkatesh ... on 19 August, 2024

Author: Sharmila U. Deshmukh

Bench: Sharmila U. Deshmukh

2024:BHC-AS:33124

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO.9853 OF 2015.

                Deelip Bapu Pawar
                Adult Occupation College Teacher,
                Residing at Datta Nagar Road No.2,
                in front of Akshay Flour Mill, Nav
                Siddhivinayak Puram, Vishram Baug,
                Sangli 416 415.                                               ...Petitioner.

                           Versus

                1. The Principal, Venkatesh Mahavidyalaya
                Ichalkaranji (416 115), District Kolhapur.

                2. The Hon. Secretary,
                N. B. Education Society, Ichalkaranji 416 115
                District Kolhapur

                3. The Director, Board of College and
                University Development, (BCUD), Shivaji
                University, Vidyanagar, Kolhapur 411 004.

                4. Hon'ble Presiding Officer,
                Savitribai Phule Pune, Shivaji & Solapur
                University & College Tribunal Pune,
                University Campus, Pune-07                                    ...Respondents.


                                             ------------
                Mr. C. G. Gavnekar a/w. Mr. Rohit Parab a/w. Mr. Ashutosh Gavnekar for
                the petitioner.
                Mr. Meelan Topkar for the respondent Nos.1 and 2.
                                             ------------




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                           Coram             : Sharmila U. Deshmukh, J.

                           Reserved on   : 18th July, 2024.

                           Pronounced on :     19th August, 2024.

JUDGMENT:

1. Rule. Rule made returnable forthwith and taken up for final

hearing with the consent of the parties.

2. The challenge in the present Petition is to the Appellate

Tribunal's order dated 2nd September, 2015 rejecting Appeal No 10 of

2013, the consequence being termination of services of the Petitioner.

FACTUAL MATRIX

3. Appeal No 10 of 2013 was filed challenging the order of

termination dated 17th February 2012 passed by the Respondent No 1

College. The Petitioner came to be appointed as Full Time Assistant

Professor in Respondent No 1 College with effect from 5 th July 2010

vide appointment order dated 2nd July, 2010 on probationary period

of two years. On 13th October 2011, the Petitioner came to be

assaulted by some persons in the college premises claiming that the

Petitioner has taken photographs of the female students without

their permission. Information about said incident was relayed to the

Principal by the Petitioner. The incident came to be reported in print

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media leading to issuance of notice dated 4 th October 2011 by the

Principal calling upon the Petitioner to tender an explanation.

Accordingly explanation was tendered vide reply dated 15 th October

2011. Being dissatisfied with the Petitioner's explanation, the

Respondent No 1 issued charge sheet to the Petitioner on 17 th

November 2011. On 14th January 2012 preliminary report was

submitted by the inquiry committee concluding that the charges were

duly proved and recommended action against the Petitioner as per

the relevant Statutes. On 23rd January 2012, explanation was

submitted by the Petitioner to the Inquiry Report. By order dated 17 th

February 2012 the services of the petitioner came to be terminated.

4. The termination was challenged by filing Appeal No 2 of 2012

before the Appellate Tribunal and vide order dated 9 th October 2012

the order of termination dated 17 th February 2012 was quashed and

set aside directing the Respondent No 1 and 2 to hold regular inquiry

in accordance with the Statute and to take decision afresh.

5. On 13th December 2012, fresh charge sheet was issued to the

Petitioner alleging misconduct by committing an act prejudicial to the

proper management of the College and breach of the terms and

conditions of service prescribed by the statutes and agreement.

Inquiry was conducted and by its report dated 30th July 2013, the

Inquiry Committee held that the Petitioner had photographed female

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students without permission causing outsiders to enter in the College

resulting in adverse newspaper publicity thereby maligning the image

of the College. By communication dated 22 ndAugust 2014 the report

of the Inquiry Committee was forwarded to the Petitioner calling

upon him to show cause against the proposed termination as the

misconduct took place during the probation period. On 29 th August

2013, Petitioner submitted his reply to the proposed action of

termination of service. On 6th September 2013, the Governing Body

resolved to remove the Petitioner from service on the ground of

unsatisfactory service during probationary period.

6. The termination order was challenged vide Appeal No.10 of

2013, which was allowed vide order dated 3rd March, 2014 and

Petitioner was directed to be reinstated with continuity of service

without back wages. The order of 3rd March, 2014 came to be

challenged by the petitioner as well as respondent No.1 before this

Court by Writ Petition No.7011 of 2014. Vide order dated 4 th

December 2014, this Court quashed the impugned order and remitted

the matter to the Tribunal to be considered afresh. Upon remand, by

the impugned order dated 2nd September 2015, the Tribunal

dismissed the Appeal filed by the Petitioner.

SUBMISSIONS:

7. Mr. Gavnekar, learned counsel for the Petitioner submits that

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the order of termination dated 6th September 2013 has been issued by

considering the Petitioner's services to be on probation. He submits

that as per Regulation dated 30 th June 2010 issued by the University

Grants Commission, the probationary period was reduced to one year

and although relevant statute was not amended, the State of

Maharashtra by Government decision dated 15th February 2011

applied the UGC Regulation from 10 th June 2010. He would further

submit that the Vice Chancellor has issued an order under Section 14

of the Universities Act on 28th March 2011 applying the Government

Resolution. He submits that in view thereof, on 4 th July 2011 upon the

petitioner completing one year of probation and in the absence of the

management extending the period of probation, the services of the

petitioner had become permanent. He submits that the issue is no

longer res integra and has been decided by learned Single Judge of

this Court in the case of Madha Taluka Shikshan Prasarak Mandal

Kurduwadi and Anr. vs. Prashant Kamlakar Narkhade and Ors.,

[2016 SCC Online Bom 5220]. He submits that the order of the

Tribunal proceeds on the basis that the petitioner was on probation

and that the direction issued by the Vice Chancellor would not have

the effect of amending the statue despite UGC Guidelines and the

Government Resolution.

8. He submits that there are two allegations firstly that the

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photographs were taken of the female students without their

knowledge, without any reason and second is about the incident of

13th October 2011. He points out the photographs annexed at page

80 onwards and would submit that the photographs taken of the

students as well as the other faculty were taken for the purpose of

publishing them in college magazine and photographs at page 88

were published in the college magazine. He submits that photographs

would indicate that the photographs are of various functions held in

the college. He submits that the photographs annexed at page 80

onwards would indicate that there are no objectionable photographs

and the photographs are of the students attending the classroom.

Drawing attention of this Court to the impugned order, he submits

that the allegation is of misconduct and that the act amounts to loss

of confidence reposed in the petitioner by the college. He submits

that the said findings amounts to a charge which would be levied

during the period of probation and in the present case, the

petitioner's services had become permanent after expiry of period of

one year. He submits that the second allegation was that due to

misconduct the incident of assault had taken place which was

reported in the media. He submits that it is admitted that the

photographs were taken. However there was no objectionable

photographs and also that the assault which had taken place was not

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at the instance of the petitioner. He submits that the findings of

unsatisfactory performance based on the misconduct has been arrived

at by the Tribunal by considering the Petitioner as probationer. He

submits that upon the petitioner having become permanent, the

Tribunal was expected to consider whether the findings of the Inquiry

Officer are perverse and whether the punishment is disproportionate

which was not considered by the Tribunal. He submits that only

allegation is that permission was not taken before clicking the

photographs and the punishment of termination of service is

disproportionate.

9. Per contra, Mr Topkar would point out the admission given by

the petitioner in the cross examination admitting that the

photographs were taken. He submits that different stand is taken that

the photographs were taken for the purpose of recording attendance

and for the purpose of filling up API forms. He points out that the

evidence proves that photographs were not required for recording

attendance or for API forms. He would further point out the

admission that by reason of Petitioner's conduct the image of college

as well as the Society has been tarnished. He submits that Inquiry

Officer has rightly considered the evidence which established that the

petitioner had taken photographs. He points out the findings of the

Inquiry Officer that in some of the photographs the college staff had

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posed for the photographs however the students are photographed

while doing some activities and that no permission was sought from

the college and the stand taken by the petitioner that the

photographs were taken to have verifiable proof as per annual

performance indicator for Annual Year-2012 cannot be accepted as

the Principal has not directed him to do so. He submits that the

inquiry was legal and proper and there is no perversity in the findings.

He submits that the services of the petitioner came to be terminated

by the College in the year 2012 based on the inquiry report. He

submits that the petitioner has not proved that he was unemployed

from the year 2012.

REASONS AND ANALYSIS:

10. Before proceeding to analyse the merits of the matter, it would

be prudent to bear in mind the limitations on the power of the High

Court while exercising powers under Article 226/227 of Constitution

of India in disciplinary proceedings. In Union of India & Ors vs

P.Gunasekaran [(2015) 2 SCC 610], the Apex Court summarised the

scope of interference as under:

"The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

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a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

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(v) interfere, if there be some legal evidence on which findings can be based;

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.

11. The position with respect to the period of probation was fairly

conceded by Mr. Topkar that in accordance with the regulations issued

by the UGC the probation has been reduced to one year from the

period of two years. The issue stands concluded by the decision of

Madha Taluka Shikshan Prasarak Mandal Kurduwadi and Anr.

(supra) in paragraph 46 as under:

"46. In my view, the said tribunal had committed an error in the impugned judgment by holding that without amendment in the statute, probation period could not be reduced from two years to one year of that the Vice Chancellor of the Solapur University could not have issued any order under Section 14(8) of the Maharashtra Universities Act, 1994 without amendment in the Statute framed by the Shivaji University. In my view, the said tribunal thus could not have held that the period of probation was not reduced from two years to one year as per the regulation issued by the University Grants Commission and thus the petitioner had not attained status of a permanent Assistant professor on completion of a period of one year from the date of his appointment".

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12. The Tribunal was thus clearly in error in holding that the

issuance of directions by the Vice Chancellor pursuant to the UGC

guidelines would not amend Statute 198 providing for probation of

two years applicable to Shivaji University. The Petitioner had attained

the status of permanent Assistant Professor on expiry of period of

one year and his services could not be terminated by treating his

services as probationary services. However, in the instant case

pursuant to the order dated 9th October, 2012 passed by the Tribunal

there was a proper inquiry held into the allegations against the

Petitioner.

13. The Petitioner has been charged with Breach of Statute 211 (3)

(ii)(1) which governs the suspension, dismissal and termination of

service for Misconduct and Explanation (b) and (c) provides that

misconduct shall include an act prejudicial to the proper management

of the College/Recognised Institution and breach of the terms and

conditions of service prescribed by the Statutes and agreement.

14. The Appellate Tribunal having discarded the contention of the

Petitioner that the probationary period was for one year proceeded to

hold that the act of Petitioner amounts to loss of confidence reposed

in him by the College and results in serious breach of conduct. By

treating the services as probationary, the Appellate Tribunal has

upheld the termination by the following findings:

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"(a) The act of termination is not illegal or improper as the

management has lost confidence in him as Professor and as the

misconduct was committed during period of probation his

services were terminated.

(b) The act of management is not illegal or improper as the

employee committed misconduct during probation and his

services are terminated on ground of unsatisfactory

performance.

(c) Probationary employee has no right to the post and if on

being found suitable he is regularised only then he acquires

right to continue in the post.

(d) If the appointing authority finds the candidate unsuitable, it

has power to terminate the services of the employee.

(e) The termination is on ground of unsatisfactory performance

and no stigma is attached so action of the management cannot

be termed as vindictive."

15. It is evident that the Tribunal has tested the validity of the

termination order on the touchstone of termination of a probationary

employee and has held that the misconduct has resulted in

unsatisfactory performance which entitles the management to

terminate the services. As the Tribunal has faulted on the primary

consideration of the period of probation, the subsequent findings

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based on the said fallacious consideration of the probationary period

cannot be sustained. The Tribunal has not appreciated the evidence

on record to examine whether the conduct even if held established

constitute a misconduct of such gravity to be visited with the major

penalty of termination of services under Statute No 211 .

16. Although, the Petitioner's services were considered as

probationary, there was a proper inquiry conducted in the misconduct

alleged. As far as the evidence is concerned, in the cross examination

the Petitioner has accepted that the Petitioner had photographed the

students during the seminar without permission of the students or

management. His case in cross examination is that the photographs

were taken for attendance purpose and for Annual Performance

Indicator (API) purpose. He has admitted that in the API form there is

no instruction to record the photographs of attendees. He has also

expressed his regret for the adverse publicity the College had to

suffer because of the incident.

17. It is clear from the evidence on record that the charge of

photographing students including female students without seeking

permission from the students or the management and without

intimating the management stood established by the Petitioner's own

admissions. Mr. Gavnekar has rightly not advanced any submission to

deny that the Petitioner had not taken the photographs and he has

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justified the act as committed for purpose of publication in magazine.

The submission canvassed by Mr. Gavnekar is contrary to the

admissions in the cross examination that the photographs were taken

for attendance verification and for API forms.

18. Secondly it is also not in dispute that the incident of assault of

Petitioner had taken place on 13th October, 2011 which was reported

in print media. The evidence on record establishes the charge framed

against the Petitioner.

19. The question now arises is whether the punishment of

termination awarded by the Disciplinary Authority is proportionate to

the misconduct. The photographs on record are of students including

girl students while they were engaged in certain activities and also of

the faculty and the staff members and without permission. From the

photographs which are produced at page 80 of the petition, it can be

found that there are no isolated photographs of female students

being taken and photographs of the students both male and female

have been taken while they are in the classroom or were doing certain

activities. There is no material which is produced on record by the

respondent-management to demonstrate that apart from the said

photographs annexed to the Petition, there were other photographs

taken by the Petitioner.

20. The allegation in support of the charge of misconduct is that on

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13th October 2011 outsiders entered the college and manhandled the

Petitioner by reason of the female students being photographed by

the Petitioner on his mobile phone, which act of misconduct amounts

to loss of confidence reposed upon the petitioner by the College with

the incident being reported in media causing damage to the College

reputation. The fact remains that it is the petitioner who has been

manhandled by outsiders and and it is not demonstrated that there

was any complaint filed by any female student objecting to the

photographs. The allegation is not that the photographs are

objectionable but that the misconduct has resulted in commission of

an act prejudicial to the proper management of the college and

breach of terms and conditions of service.

21. In the explanation tendered by the Petitioner, it is stated that

the Petitioner used to click photographs of the various functions and

activities taking place in the College and of the students and faculty

members participating in such functions and activities and some of his

photographs were published in the college magazine. The Inquiry

Officer has held that the photographs taken by the Petitioner shows

that the college staff is in the photographs and they have posed for

the photographs and the students are photographed while doing

some activities. It held that the Petitioner had not taken permission

from the college and that the girl students were not aware of the

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photographs being taken. The Inquiry Officer has held that the

Petitioner has taken photographs of the girl students without

permission and that some of the photographs were published in the

college magazine.

22. The Inquiry Officer held that the photographs on record does

not show the girl students in any objectionable pose and they are

seen doing their college activities and normal activities. It held that

none of the college witnesses has deposed that objectional pose of

girl students were taken and it cannot be said that there are

objectional photographs of girl students. It further held that there

was media reporting of the incident of 13 th October, 2011 which

occurred in the college and caused bad publicity and tarnished the

image of the College. There is no perversity in the findings of Inquiry

Officer particularly considering the admissions of the Petitioner.

23. Statues framed under Section 42(1) of the Shivaji University Act,

1974 govern the terms and condition of service of Teachers in

affiliated College. In case of misconduct, the Statute provides for

imposition of minor and major penalties depending on gravity of the

offence. The Petitioner has been visited with the major penalty of

termination of service. The findings of the Inquiry Officer would

indicate that the Petitioner used to regularly take photographs of the

various functions and activities taking place in the College campus.

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Apart from the students even the faculty and staff have been

photographed at various functions and are seen posing for the

photographs. Some of the photographs have been published in the

college magazine. The college being co-ed college, the photographs

are of male as well as female students in the class rooms and engaged

in various activities. There is no evidence of any objectionable

photographs of the female students and no complaint by any student.

24. In my opinion, the act of the Petitioner of photographing the

students including girl students during various functions and while

being engaged in classroom and other activities is an act of over-

enthusiasm, however, the commission of the act without the

permission of the management of the College and the students

amounts to misconduct. The incident which occurred on 13th October,

2011 was reported in media, however it needs to be noted that the

Petitioner had immediately brought the incident to the notice of the

Principal and nothing has been brought on record to show that the

media reports has resulted in tarnishing the image of the College to

such an extent justifying the penalty of termination. Though the

evidence on record would establish that the Petitioner has committed

an act which has interfered with the proper management of the

College, the imposition of the drastic punishment of termination of

services is severely disproportionate to the misconduct of

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photographing students without permission leading to the incident of

13th October, 2011.

25. The Tribunal has upheld the termination order by holding that

the termination is based on unsatisfactory performance during

probationary period without appreciating the fact that services of the

petitioner has become permanent and as such findings of

unsatisfactory performance is not a ground sufficient for termination

of the permanent employee. It is well settled that in exercise of

powers of judicial review, if it is found that the punishment is

shockingly disproportionate only in exceptional and rare cases in

order to shorten the litigation the Court may impose appropriate

punishment with cogent reasons.

26. In the present case, the order of termination is of the year 2013

and the judgment of the Tribunal is of the year 2015. The Petition has

been adjudicated in the year 2024. In my view, the remand the matter

to the Disciplinary Authority to revisit the penalty imposed in light of

findings of this Court, would result in further litigation by the parties.

In order to shorten the litigation, in my view, in facts and

circumstances of the case where the misconduct though established is

not so grave as to justify the drastic penalty of termination, it would

be appropriate to reduce the penalty and reinstate the Petitioner. As

far as payment of back wages is concerned, there are no submissions

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advanced on this aspect and it has not been demonstrated that from

the date of termination in the year 2013, the Petitioner is unemployed

and cannot be so for period of almost a decade. In my view as the

misconduct has been proved though required to be visited with

reduced penalty, in the absence of any material to justify payment of

back wages, the Petitioner is entitled to reinstatement without back

wages.

27. Statute 212 provides for imposition of major penalties which

include stoppage of increment with or without effect on future

increments. In my view, the facts of present case justify reduction of

penalty of termination to stoppage of increments for two years.

28. Hence the following order is passed:

:ORDER:

(a) The termination order dated 6th September, 2013 and the

impugned judgment and order dated 2 nd September, 2015 are

hereby quashed and set aside;

(b) The penalty of termination is set aside. Instead of penalty

of termination, the penalty of stoppage of increments for

two years is imposed on the Petitioner which shall have the

effect of postponing his future increments of pay. Replaced

penalty to take effect from date of termination i.e. 6 th

September 2013;

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(c) Petitioner be reinstated in service within six weeks. The

intervening period from date of termination till

reinstatement be treated as duty for all purposes except for

back wages.

29. Petition succeeds. Rule stands allowed in the above terms.

30. In view of disposal of petition, Interim/Civil Applications, if any,

do not survive for consideration and stand disposed of.

[Sharmila U. Deshmukh, J.]

31. At this stage, a request is made for stay of the present

judgment. The said request is opposed by the learned counsel for the

respondents. Considering that the termination is of the year 2013, the

judgment is stayed for a period of three weeks from the date of

uploading the present judgment on the official website of this Court.

                                                 [Sharmila U. Deshmukh, J.]




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