Bombay High Court

Zahid Zaheer vs The President / Chairman And Others on 3 September, 2025

2025:BHC-AUG:23567
                                                   1
                                                                    3761.2022WP.odt

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                 WRIT PETITION NO. 3761 OF 2022

                     Dr. Zahid Zaheer
                     Age : 42 years, Occ : Nil,
                     R/o Plot No.08, Professor Colony,
                     Near Delhi Gate, Aurangabad.
                                                                ..PETITIONER
                                 VERSUS

                     1.    The President/Chairman,
                           Maulana Azad Education Trust,
                           Dr. Rafiq Zakaria Campus,
                           Rauza Baugh, Aurangabad.

                     2.    The Incharge Principal,
                           Y.B. Chavan College of Pharmacy,
                           Dr. Rafiq Zakaria Campus,
                           Rauza Baugh, Aurangabad.

                     3.     The Registrar,
                            Dr. Babasaheb Ambedkar Marathwada
                            University, University Campus,
                            Aurangabad.
                                                                ..RESPONDENTS
                                                     ...
                     Mr.V.D. Sapkal, Senior Advocate a/w Mr. R.N. Patil and Mr.
                     A.D. Khedkar i/b Mr. Ganesh P. Darandale, Advocate for the
                     petitioner.
                     Mr. R.N. Dhorde i/b Mr. P.S. Dighe a/w Mr. H.A. Shinde & Mr.
                     S.S. Dhudhane, Advocate for Respondent Nos.1 and 2.
                     Mr. S.S. Thombre, Advocate for Respondent No.3.
                                                     ...
                                  CORAM              :     ROHIT W. JOSHI, J.
                                 RESERVED ON       :     12th AUGUST, 2025
                                 PRONOUNCED ON:          3rd SEPTEMBER, 2025


                     JUDGMENT :

. The present petition is filed challenging judgment

3761.2022WP.odt

and order dated 31.01.2022 passed by the learned Presiding

Officer, University and College Tribunal, Aurangabad

(hereinafter referred to as "the Tribunal"), dismissing Appeal

No.BAMU-05/2021 filed by the present petitioner challenging

termination order dated 28.05.2021 passed by respondent

no.1.

2. The petitioner was appointed on the post of

Lecturer with respondent no.2 - college on 24.05.2005. The

said college is run by respondent no.1, which is a Public Trust

registered under the Maharashtra Public Trust Act, 1950.

Respondent No.2 imparts education in Pharmaceutical

Sciences. The petitioner was promoted on the post of

Associate Professor on 30.06.2007. He was promoted as

Professor and Incharge Principal in the year 2013. On

01.03.2015, the petitioner was selected as Principal of

respondent no.2 - college for a period of five years and has

completed his tenure as Principal on 29.02.2000. It is the case

of the petitioner that since he had filed petition before this

Court, being Writ Petition No.5009/2020 claiming arrears of

salary as per 6th Pay Commission, respondent no.1 -

management got antagonized with him, and therefore,

3761.2022WP.odt

initiated disciplinary enquiry against him. He contends that

the enquiry was initiated with a predisposed mind to

terminate the services of the petitioner.

3. Initially, a show-cause notice dated 12.02.2020

was issued to the petitioner. The petitioner replied to the said

notice on 21.02.2020. Thereafter, second show-cause notice

was issued on 27.07.2020. The petitioner issued

communication dated 03.08.2020 asking for certain

documents for filing reply. In response to this letter,

respondent no.1 issued reply dated 11.08.2020, thereby

providing 16 documents to the petitioner.

4. On 05.09.2020, two separate resolutions were

passed by respondent no.1, thereby authorizing either the

Managing Trustee or any one of two trustees namely,

Mr.Farhat Jamal and Mr. Aziz Mulla to take necessary steps

regarding disciplinary enquiry against the petitioner such as

issuing suspension order, communications, initiating enquiry,

appointing management's representative, issuing charge-sheet

and termination order etc. On the same day i.e. on 05.09.2020

3761.2022WP.odt

another resolution was passed whereby Mr. Farhat Jamal and

Mr. Aziz Mulla were authorized to appoint Enquiry Officer for

conducting departmental enquiry against the petitioner. They

were also authorized to appoint management representative

for conducting enquiry. By the said resolution, authority was

conferred on either one person to perform the aforesaid acts.

Thereafter, the services of the petitioner came to be suspended

vide suspension order dated 22.09.2020. Charge-Sheet was

issued against the petitioner on 07.12.2020. The suspension

order and charge-sheet had issued under the signature of the

Managing Trustee Mr. Suhail Nathani. The petitioner was

granted 15 days time to reply to the charge-sheet. The

allegations in the charge-sheet are relating to

misappropriation of funds, effecting illegal admissions by

accepting donations, running a medical store under the name

and style "Tabish Medical and General Stores, obtaining order

of appointment and subsequent promotion orders by

practicing fraud by suppressing the fact of parallel

employment of running Medical Store, making payment of

personal electricity bills and mobile from the funds of society,

making payment of fees of Advocate, who was appointed to

contest a case initiated against the petitioner in personal

3761.2022WP.odt

capacity out of funds of college, appointing staff without

approval of Management etc.

5. During the course of enquiry, the management

examined witnesses in order to bring home the charges. The

petitioner had made a request for permission to appoint

Advocate or a Representative to defend his case. The said

application was rejected. The petitioner has participated in the

departmental enquiry and conducted the proceeding in

absence of any Advocate or Representative. The petitioner had

made an application for issuing summons to five witnesses,

however, permission was granted to examine two witnesses

only. After the enquiry was concluded, services of the

petitioner came to be terminated vide termination order dated

22.09.2020. Being aggrieved by the order of termination of his

services, the petitioner filed aforesaid Appeal before the

learned Tribunal. The learned Tribunal after hearing the rival

submissions has dismissed the Appeal preferred by the

petitioner. The learned Tribunal has found that the provisions

of the Maharashtra Civil Services (Discipline and Appeal)

Rules, 1979 (hereinafter referred to as "the MCSR") were not

strictly followed during the course of enquiry. However,

3761.2022WP.odt

findings are recorded that the petitioner could not prove that

any prejudice is caused to him due to failure to observe the

said provisions. The learned Tribunal has recorded findings on

merits of the charges. While recording findings on merits, the

learned Tribunal has observed that although, the parties did

not advance submissions with respect to merits of the charges,

it was found necessary to deal with the same in order to rule

out possibility of remand of the matter. The learned Tribunal

has held that most of the charges including charges of

misappropriation and obtaining employment by suppression of

material facts while securing employment and act of parallel

employment were duly proved. It will be pertinent to mention

here that the disciplinary enquiry was conducted making

reference to Unified Statues proposed to be framed under the

Maharashtra Public Universities Act, 2016. However, the said

Statutes have not come into force. One of the objections raised

by the petitioner was that enquiry was conducted invoking the

provisions that are not brought into force. The learned

Tribunal has rejected the said contention observing that the

said provisions were akin to provisions of MCSR, and

therefore, no prejudice was caused to the petitioner since only

the nomenclature of the relevant provisions had changed.

3761.2022WP.odt

6. Mr. V.D. Sapkal, learned Senior Advocate

appearing for the petitioner raises the following contentions :-

(i) The enquiry was conducted under the provisions of Unified

Statutes, which have not come into force;

(ii) The provisions of the MCSR are not applicable to teachers

of affiliated colleges;

(iii) Charge-Sheet was issued by a person, who was not

authorized to do so and thereby the entire enquiry is vitiated;

(iv) The act of issuance of charge-sheet was not ratified or

confirmed by the Chairman as contemplated under the Trust

Deed;

(v) Enquiry Officer and Management's Representative were

appointed before the period stipulated for filing of reply had

expired, which conclusively establishes bias on the part of the

Management;

(vi) All the relevant documents were not provided;

(vii) Permission to examine three witnesses was wrongly

refused by Enquiry Officer causing prejudice to the petitioner;

(viii) The petitioner was not permitted to appoint Advocate or

3761.2022WP.odt

even the Representative to put up his case, although a retired

Judge was appointed as an Enquiry Officer and the

Management's Representative was being assisted by a person

holding Post Graduate Degree in Law and;

(ix) Lastly, the learned Tribunal has erred in recording

findings with respect to the charges although submissions in

that regard were not advanced.

7. Per contra, Mr. R.N. Dhorde, learned Senior

Advocate appearing for Respondent Nos.1 and 2 supports the

judgment and order passed by the learned Tribunal. He

contends that the petitioner had obtained employment in the

College by practicing fraud, in as much as, he did not disclose

the fact that he was associated with Pharmaceutical shop as a

qualified Pharmacist. He contends that had the petitioner

disclosed this fact, respondent no.1 - management would not

have appointed him on the post of Lecturer. He also argues

that the petitioner worked with the said shop simultaneously

while he was in employment with respondent nos.1 and 2. He

draws attention to provisions of MCSR to contend that a

teacher working in a affiliated college is not permitted to work

elsewhere. Mr. Dhorde contends that it is well settled legal

3761.2022WP.odt

proposition that fraud unravels all acts and since the

appointment is obtained by practicing fraud, the petition

should be dismissed by confirming the judgment passed by the

learned Tribunal.

8. Heard rival submission as aforesaid and perused

the record of the case with the able assistance of both the

learned Senior Advocates. It appears from the findings

recorded by the learned Tribunal that the learned Tribunal has

initially dealt with the procedural aspects of the enquiry. The

learned Tribunal has observed that although, the enquiry may

not have been conducted strictly in accordance with

provisions of the MCSR, that by itself cannot be a ground for

setting aside the order of termination. It is held that failure to

follow the said provisions cannot be a ground for setting aside

the order of termination unless consequent prejudice is proved

by the employee. As regards merits of the charges, the learned

Tribunal as stated above has held that charge with respect to

securing employment by suppression of fact of working as

licensed Pharmacist is proved and likewise charge of

simultaneously working as Pharmacist while working with

respondent no.2 - college is also proved. Apart from this, it is

3761.2022WP.odt

held that the charges with respect to financial irregularity

such as, payment of mobile and electricity bills, payment of

salaries from EPF Account, payment of Advocate fees from

account of society, etc., are also proved. As stated above, these

charges are held to be proved although submissions in that

regard were not advanced.

9. The first contention of the learned Senior

Advocate Mr. Sapkal is that the provisions of Unified Statutes

which have not brought into force could not have been

invoked while conducting departmental enquiry against the

petitioner. He contends that the provisions of MCSR are also

not applicable since the same are applicable only to a State

Government employees and that the petitioner is not a

Government Servant.

10. Mr. Dhorde, the learned Senior Advocate draws

attention to the reply filed by the respondents along with

which a letter dated 15.04.2008 issued by the University in

response to query made under the Right to Information Act

(RTI Act) is annexed. This letter is issued under the signature

3761.2022WP.odt

of the Registrar, wherein it is stated that provisions of MCSR

are made applicable to employees of affiliated colleges. Before

commencing the hearing of the present petition, the learned

Advocate for Respondent -University was called upon to clarify

the stand of the University in this regard. In response, the

learned Advocate for the Respondent-University has produced

on record communication dated 28.07.2025 addressed to him

by the Registrar of the University informing that provisions of

MCSR have been adopted by the University with respect to

employees working in University Institutions, however, as

regards teachers working with affiliated colleges most of the

colleges are following the provisions of MCSR, while

conducting the disciplinary proceeding since such rules are

not framed with respect to employees of affiliated colleges.

11. The said contention cannot be accepted.

Relationship between employer and employee is in the nature

of a contract. Such contract under General Law is terminable

in nature and also not specifically enforceable. Right to

terminate services of an employee is inherent. However, with

advancement of time, statutory provisions have been brought

into force, which to a great extent curtail absolute right of the

3761.2022WP.odt

employer to terminate the services of the employees. This is

done in order to bring in an element of fairness and to protect

the employees from victimization by the employer. It is well

settled that educational institutions such as respondent no.2

cannot terminate the services of its employees in an arbitrary

and high handed manner. The services of the employees

working in educational institutions can be terminated only for

just and sufficient reasons and that too by following principles

of natural justice. If the service conditions are regulated by

any statute, enquiry must be conducted in accordance with

the said statute. However, in the absence of any such statute,

enquiry must be conducted in a just and fair manner in

compliance with principles of natural justice.

12. The petitioner had raised several contentions with

respect to aspects of procedure during the course of

disciplinary enquiry. The petitioner had raised contention hat

the enquiry is vitiated because he was not permitted to

appoint any Advocate or even Representative to put his case in

the disciplinary proceeding. The petitioner had referred to

relevant provisions of MCSR in support of his contentions. The

learned Tribunal has rejected this contention observing that no

3761.2022WP.odt

prejudice is caused to the petitioner on account of refusal to

permit him to engage Advocate or appoint a Representative in

the disciplinary proceeding.

13. The petitioner had made a request for examining

five witnesses. Permission was granted to examine only two

witnesses. The learned Tribunal has held that the petitioner

had failed to establish any prejudice on account of rejection of

permission for examination of other three witnesses.

14. Perusal of the findings recorded by the learned

Tribunal will demonstrate that the learned Tribunal has

initially considered the procedural aspects of the enquiry.

While dealing with the same, the learned Tribunal has held

that the petitioner has failed to demonstrate any prejudice on

account of non-compliance with the provisions of MCSR

governing conduct of enquiry. However, these findings are

recorded without dealing with the facts of the case. It is

merely said that the petitioner has failed to establish any

prejudice. In the considered opinion of this Court, the learned

Tribunal should not have recorded findings in this regard in

3761.2022WP.odt

isolation without referring to facts of the case. The correct

approach would be to deal with the factual aspects of the

matter and then to make assessment as to whether any

prejudice is caused or not. Particularly with respect to the

right to appoint the Advocate or Representative, the learned

Tribunal has not considered the fact that the Enquiry Officer is

a retired Judge and that the Management's representative was

assisted by a person holding qualification of LL.M.

15. The learned Tribunal has thereafter

independently dealt with each charge framed in the

disciplinary proceedings. The learned Tribunal has

categorically observed that submissions on merits with respect

to charges were not advanced yet in order to avoid remand, it

was necessary to record findings with respect to the same.

Since the learned Tribunal intended to record findings on

merits of the charges, it was incumbent upon the learned

Tribunal to put the parties to notice that it intended to record

the findings with respect to merits of charges as well. In the

considered opinion of this Court recording findings with

respect to matter that was not argued by the parties has

resulted in breach of principles of natural justice. While

3761.2022WP.odt

dealing with the aspect of prejudice on account of failure to

observe the provisions regulating procedure of enquiry, the

learned Tribunal ought to have considered the charges and

considering the nature of charges and material, the learned

Tribunal should have considered as to whether prejudice as a

matter of fact is caused or not due to non-compliance.

Findings regarding prejudice should not have been recoded in

isolation. The finding as to whether prejudice is caused or not

ought not to be recorded without dealing with factual matrix

of the matter. It appears that the learned Tribunal has erred in

this regard in making observations with respect to prejudice

without dealing with factual aspects of the matter. In the

considered opinion of this Court, the approach of the learned

Tribunal requires a course correction. This Court is of the

opinion that the matter is required to be remanded to the

learned Tribunal for consideration of appeal on merits afresh.

16. The learned Tribunal has placed reliance on the

provisions of the MCSR in holding that it was not permissible

for the petitioner to work elsewhere while he was working on

teaching post in respondent no.2 - institution. The issue as

regards applicability of MCSR also must be revisited in view of

3761.2022WP.odt

self contradictory letters issued by Registrar of University with

respect to the same. The Registrar of the University in

response to RTI has clearly stated that the provisions of MCSR

are applicable, however, on a query made to the learned

Advocate for the Respondent-University, written instructions

are issued, which indicate that the provisions of MCSR are not

adopted by the University for teaching staff of affiliated

colleges. It will be pertinent to state that University is

competent to frame service conditions for employees of

affiliated colleges by framing Statutes. In exercise of the said

powers, the provisions of MCSR can be adopted by University.

However, whether the provisions are adopted or not also

needs to be examined.

17. During the course of hearing of the present

petition, the respondent has filed on record, "Minimum

Qualifications for teachers in Pharmacy Institutions

Regulations, 2014" notified on 11.11.2014 and "University

Grants Commission (Minimum Qualifications for

Appointement of Teachers and other Academic Staff in

Universities and Colleges and other Measures for the

Maintenance of Standards in Higher Education) Regulations,

3761.2022WP.odt

2010". The Tribunal shall also take into consideration these

Regulations including the issue of applicability thereof while

deciding the Appeal.

18. Since the matter is being remanded for fresh

consideration, all the contentions raised are not answered. It

will be open for the parties to raise all the contentions before

the learned Tribunal.

19. In the result, the following order is passed :-

ORDER

(i) Writ Petition is partly allowed.

(ii) The judgment and order dated 31.01.2022 passed by

the learned Presiding Officer, University and College Tribunal,

Aurangabad in Appeal No.BAMU-05/2021 is quashed and set

aside.

(iii) The matter is remanded to the University and College

Tribunal, Aurangabad for adjudication of the appeal afresh.

(iv) The parties shall appear before the learned Tribunal on

22nd September, 2025. Separate notice for appearance will not

3761.2022WP.odt

be issued to the parties.

(v) The Respondent- University is directed to cause

appearance in the Appeal and file a reply taking definite stand

as regards applicability of the MCSR and/or any other

provisions to teaching staff of affiliated college. In the event

provisions of MCSR are adopted, the documents should also

be produced on record before the learned Tribunal.