2. Facts which led to filing of these Petitions are narrated in
The Trust and the College suspended the Petitioner on the
allegations of mis-conduct, disobeying orders etc. After suspension,
preliminary enquiry was conducted and the committee submitted its
report recommending major punishment of termination. The Trust
had appointed Advocate Shri G. S. Baj as Enquiry Officer. The
Enquiry Officer proceeded with the enquiry and submitted report
holding the employee guilty for the charges levelled against him. The
Respondent, after issuing show-cause notice for dismissal of service
in favour of the employee, dismissed him from service. The dismissal
order came to be challenged before the University and College
Tribunal. The Tribunal partly allowed the appeal filed by the
employee by setting aside the enquiry report along with dismissal
order and directed conduct of enquiry afresh. It however, did not
grant re-instatement with continuity and backwages. Hence, these
Petitions.
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3. Heard learned Senior Counsel for both sides. Perused
Petitions, reply, documents and record of Tribunal.
4. Learned Senior Counsel for Petitioner submits that the
Tribunal has committed error in not taking into consideration the
fact that the University had granted permission by letter dated
09.10.2014 to hold departmental enquiry against the
delinquent/teacher. It is his further submission that the Tribunal
ought not to have gone into the issue as to the correctness of the said
permission granted by the University. It is his further submission
that the relevant statute applicable to the employee requires charge-
sheet to be signed by the Enquiry Officer. He drew attention of the
Court to Form Appendix IX indicating that the same is to be signed
by the Enquiry Officer. It is his submission that in view of the
peculiarity of the provisions of the statute, the judgment relied by
other side would have no application to the present case. It is his
further contention that though it is sought to be alleged that the
charge-sheet is not issued along with the statement of allegations as
per the statute 228(2)(3), bare perusal of the charge-sheet indicates
that the statement of imputation forms part of the charge-sheet. It is
his submission that in view of non-communication of the statement
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of imputation independently or otherwise the Tribunal has erred in
holding that there is non-compliance of the relevant statute. He drew
attention of the Court to the said charge-sheet wherein the names of
witnesses are also duly mentioned. On the point of non-supply of
documents, it is contended that as per the statute it is the duty of
the employee to show the relevancy of the document and that the
employee has failed to show any relevancy thereof. In any case, it is
his submission that the said documents have no relevance to the
charges levelled against the delinquent/teacher. He drew attention of
the Court to the proceedings of the enquiry wherein it was clearly
accepted by the delinquent/teacher that he has received all the
documents and has no grievance in respect of conduct of enquiry.
Reference is made to the statement made therein indicating receipt of
enquiry proceedings along with statements recorded.
5. Insofar as non-supply of statement of witnesses prior to
three days of examination is concerned, it is his contention that the
employer has examined 5 witnesses and they were duly cross-
examined by the delinquent/teacher. It is his submission that the
delinquent has chosen not to appoint any representative and to
defend his own case in the departmental enquiry. It is his
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submission that the departmental enquiry was video-graphed and
this indicates transparency maintained in conduct of the enquiry. It
is his submission that at no point of time before the Enquiry Officer
any grievance is made by the delinquent/teacher in respect of non-
compliance of principles of natural justice or he being denied any
opportunity of hearing.
6. On the point of an opportunity to explain notice imposing
punishing is concerned, it is his submission that a resolution is
passed and on the basis of said resolution the decision of imposition
of punishment was taken. By relying upon the judgment of the
Hon'ble Supreme Court in case of Union of India vs. K. Rajappa
Menon, 1970 AIR 748, it is argued that, the disciplinary authority is
not required to record independent findings in respect of the findings
recorded by the Enquiry Officer and confirmation of the said findings
is sufficient compliance. It is his submission that notice was duly
issued upon the delinquent/teacher and inspite of the same, he failed
to reply to the said notice. Thus, according to him, once show cause
notice is not replied, the delinquent/teacher is precluded from
making grievance in respect of non-compliance of the relevant
statute. It is also sought to be argued that there is no substance in
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the grievance made by the delinquent with regard to obtainment of
minority status by the Petitioner/Institution.
7. In support of his submissions, reliance is placed on
following judgments :-
(i) State Bank of India vs. Bidyut Kumar Mitra & others
AIR 2011 SC (Supp) 798
(In case relevancy of documents is not shown, non
requisitioning of document does not render enquiry void and there is
no presumption of prejudice having been caused to delinquent by the
same)
(ii) Syed Rahimuddin vs. Director General, CSIR and others,
(2001) 9 SCC 575
(If no grievance is made during course of enquiry, no grievance
permissible at subsequent stage.)
(iii) State of U.P. and others vs. Ramesh Chandra Mangalik
(2002) 3 SCC 443
(Non consideration of documents by Enquiry Officer of those
not provided to the delinquent, no violation of principles of natural
justice.)
(iv) Syndicate Bank and others vs. Venkatesh Gururao Kurati
(2006) 3 SCC 150
(Non-supply of documents - not relied by prosecution - neither
prejudicial to delinquent so as to violate principles of natural justice.)
(v) M. H. Devendrappa vs. The Karnataka State Small Industries
Development Corporation.
AIR 1998 SC 1064
(On the point of mis-conduct detrimental to the interest and
prestige of Corporation (employer))
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(vi) Biman Basu vs. Kallol Guha Thakuurta and another
(2010) 8 SCC 673
(Paragraph no. 32 to support submissions regarding
importance of schedule form/appendix)
(vii) Kuldip Singh vs. State of Punjab and others
AIR 1997 SC 79
(viii) State Bankof Patiala and others vs. S. K. Sharma
(1996) 3 SCC 364
( Regulation regarding furnishing copies of statement of
witnesses within three days is a procedural provision and not
substantial or mandatory in nature. In case no grievance is made in
enquiry and no prejudice is shown to have been caused- no
interference.)
8. Learned Senior Counsel on behalf of the
Respondent/employee at the outset has sought to contend that
charge-sheet could not have been issued by the Enquiry Officer.
According to him, statute 228(3) mandates the disciplinary authority
to deliver or cause to deliver to the delinquent in the form of copies of
charges and statement of imputation of mis-conduct. It is his
submission that the statute requires list of witnesses to be appended
to the same, which has not been done in this case. It is his
submission that the disciplinary authority could not have appointed
the Enquiry Officer unless charge-sheet was issued and an
opportunity of being heard was granted to the Petitioner. It is his
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submission that by doing so the Petitioner has been denied chance to
point out to the management that no enquiry is contemplated against
him.
9. On the point of show cause notice, it is sought to be
argued that the statute 231 requires the management to furnish to
the teacher copy of enquiry report and his findings on each article of
charge expressly stating whether he agrees with the findings of
Enquiry Officer or otherwise. It is his submission that the resolution
now sought to be relied upon was neither referred in the show cause
notice nor it was placed before the Tribunal. It is his submission
that unless express finding is recorded by the disciplinary authority
agreeing findings of the Enquiry Officer, it cannot be said that there
is compliance of statute 231(5)(i) & (ii). It is his submission that in
any case, show cause notice was mandatory to be issued to the
teacher before penalty is executed. According to him, these statutory
provisions are being not complied. It is his further submission that
once the mandatory provisions are not complied, the delinquent is
not required to show any prejudice being caused to him
independently. To support his submissions, he placed reliance on
following judgments :-
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(i) State of Uttar Pradesh vs. Amitabh Thakur
2017 LAB.I.C. (NOC) 45 (ALL)
(Appointment of Enquiry Officer before any written statement of
defence could be filed is contrary to Rule 8(6)(a) of 1969 Rules read
with Circular dated 25.11.1981)
(ii) State Bank of Punjab vs. V. Khanna
AIR 201 SC 343
(Announcement of Enquiry Officer even before receipt of reply
of delinquent/employee to the charge-sheet shows bias.)
(iii) State of Punjab vs. V. K. Khanna
2000 DGLS(Soft)1698
(Regarding malice or malafide or motive involved in the matter
of issue of charge-sheet or the concerned authority was biased that
the enquiry would be of mere parciple show.)
(iv) S. Pratap Singh vs. State of Punjab
1964(4) SCR 733
(Commencement of conduct of enquiry contrary to the rules)
(v) Govt. of A. P. vs. A. Majeed and another
2005 CJ(AP) 329
(Disciplinary Authority shall deliver or cause to deliver to the
Government Servant copy of charge, statement of mutation of mis-
conduct and the witnesses by which each article is proposed to be
substantiated.)
(vi) M.V. Bijalani vs. Union of India
2006 DGLS (Soft) 277
(framing of appropriate charge and proof thereof.)
(vii) Union of India and others vs. B. V. Gopinath
2013 DGLS (Soft) 711
(Departmental Enquiry - misconduct- absence of proof of
charge memo by Finance Minister and consequence thereof.)
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(viii) Kuldeep Singh vs. Commissioner of Police
1998 DGLS (Soft) 1163
(Findings recorded in the domestic enquiry if not supported by
any evidence, can be characterised as perverse)
(ix) State of U.P. and others vs. Saroj Kumar Sinha
2010 DGLS (soft) 90
(Removal from service without observing principles of natural
justice and relevant rules not tenable)
(x) Nandkumr Mahadeo Dengane vs. Bhavika Vidya P.M.
2008(4) Bom.C.R. 319
(proportionality of punishment)
(xi) Vidya Vikam S. P. Mandal and another v. Education Officer's
and another
2007(3) Bom.C.R. 281
(Under MEPS Act, non-compliance of relevant rules)
(xii) State of Punjab and others vs. Dr. Harbhajan Greasy
1996(9) SCC 322.
(In case of enquiry held to be not proper, the proper course is to
remit back for fresh enquiry from the stage fault was committed.)
(xiii) Public Education Society vs. Deputy Director of Education
(Writ Petition No. 3709/2009)
(In case of enquiry held to be not proper, the proper course is to
remit back for fresh enquiry from the stage fault was committed.)
10. The issue involved before the Tribunal was whether the
enquiry conducted against the teacher is fair and proper and is in
consonance with the Statute applicable. The correctness or
otherwise of findings recorded by Tribunal is considered on
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touchstone of the facts, provisions of statute and precedents cited by
both sides.
11. At the outset, it needs to be recorded that for the purpose
of conducting a departmental enquiry, permission of the University
was necessary and admittedly, such permission has been granted.
The permission for conduct of departmental enquiry is preceded by
preliminary enquiry conducted by the Institution and pursuant
thereto, permission was granted by the University. It would not be
open to take exception to said permission granted by the University
in view of the fact that such permission would be granted on prima
facie appreciation of the material on record. It would be also
necessary to record that no undue importance to the preliminary
enquiry can be given and certainly not for deciding the fate of the
departmental enquiry conducted thereafter. The Tribunal seems to
have granted undue importance to the conduct of the preliminary
enquiry. The entire purpose of conduct of preliminary enquiry is to
get satisfaction that there is sufficient material in order to proceed
further in conducting departmental enquiry before initiating any
action against the teacher.
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12. In this backdrop, initially the President of the Institution
was appointed as Enquiry Officer. The teacher took exception to his
appointment and hence at the later stage, appointment of a retired
District Judge came to be done for the purpose of conducting
enquiry. There is no dispute about the fact that the teacher
participated fully in the said enquiry without making any grievance
in respect of fairness of the enquiry or the authority of the Enquiry
Officer.
13. The first contention on merit is with regard to non-
issuance of statement of allegations as per Statute 228(2)(3). The
said Statute indicates that the statement of allegations is required to
be issued along with charge-sheet. The whole purpose of issuance of
such statement of allegation is to enable the delinquent to meet with
specific allegations and imputations made against him. The question
now arises as to whether the statement of allegations must be
separately forwarded with the charge-sheet or that it could become a
part of the charge-sheet. Perusal of the charge-sheet dated
03.12.2014 issued to the teacher indicates that the statement of
imputation forms part thereof. A careful perusal thereof further
indicates that the statement of allegations is specifically made in
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detail in respect of each charge sought to be framed against the
teacher. Thus, the purpose of Statute 228(2)(3) has been achieved
substantially. This being a substantial compliance of the provisions,
this Court finds no reason to accept the findings recorded by the
Tribunal that along with charge-sheet statement of allegations has
not been submitted and it would become reason to quash enquiry
proceeding.
14. Insofar as the list of witnesses is concerned, no doubt,
relevant provisions of the Statute require the management to furnish
a list of witnesses who are to be examined to support/prove the
charges against the teacher. In the charge-sheet itself, similar to the
case of statement of allegations, the names of witnesses are
specifically mentioned in the charge-sheet against each charge. It is
therefore clear that the management well in advance has intimated
the teacher the proposed witnesses to be examined for proving
independent charges levelled against him. Needless to say that the
whole intention behind intimating to the teacher the names of
witnesses is to enable him to defend properly in the course of enquiry
and said requirement has been duly fulfilled with in the instant case.
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15. One more issue sought to be canvassed by the learned
counsel on behalf of the teacher is with regard to the authority of
Enquiry Officer to issue charge-sheet. It is contended on behalf of
the teacher that as per the relevant Statute the charge-sheet is
required to be issued by the management and not by the Enquiry
Officer. It would be relevant to take note of the said Statute at this
stage which reads thus :-
Statute 228 :-
(1) Whenever the Disciplinary Authority is of the
opinion that there are grounds for enquiry into the
truth and/or substance of imputation(s) of
misconduct on the part of the teacher(s), which may
result in major penalty, it may itself enquire into or
appoint an Enquiry Officer not below the rank of
District Judge; to enquire into the truth thereof.
The appointment order of the Enquiry Officer shall
be issued in the Form appended in Apendix.
(2) Where it is proposed to hold enquiry against
the teacher, the Disciplinary Authority shall draw
up or cause to draw up -
(a) the substance of imputation(s) of misconduct
into definite and distinct article(s) of charge(s).
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(b) a statement of imputation(s) of misconduct in
support of each article of charge(s) which shall
contain -
(i) a statement of all relevant facts including any
admission or confession by the teacher, and
(ii) a list of documents by which and a list of
witnesses by whom, the article(s) of charge(s) are
proposed to be sustained.
16. No doubt, the Statute indicates about issuance of charge-
sheet by management against the delinquent/teacher. At the same
time, however, the form provided for issuance of charge-sheet cannot
be given a complete go bye. Appendix IX provides for form of memo of
charges. A perusal thereof indicates that the charge-sheet is required
to be signed by the Enquiry Officer. From conjoint reading of the
Statute and the Form of the charge-sheet, only possible
interpretation would be that when the Disciplinary Authority is of
opinion that there are grounds for enquiry into the substance of
imputations and further decides to appoint Enquiry Officer for that
purpose, it would be necessary to make such appointment of Enquiry
Officer at that stage itself. The form of charge-sheet indicates that
charge-sheet though to be drawn by the Disciplinary Authority, it
must be signed by Enquiry Officer. In such circumstances, if the
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charge-sheet is signed by the then Enquiry Officer, no fault can be
found with the same. In view of this peculiarity in the provision of
Statute, it would not be possible to accept the challenge to the
enquiry on the ground that charge-sheet is signed by Enquiry Officer.
17. It is relevant to note that earlier President of the
Institution was appointed as Enquiry Officer, who signed charge-
sheet and on objection being raised to his appointment, retired
District Judge came to be appointed to conduct enquiry. There is no
case made out by the teacher that on account of charge-sheet being
signed by Enquiry Officer any prejudice has been caused to him.
Similarly, since there was earlier appointment of President of
Institution as Enquiry Officer, no fault could be found in he singing
charges.
18. Pertinently, Statute 226 from clause (1) to (17) provides
for the sequence in which the different stage are to be followed i.e.
from the formation of opinion by Disciplinary Authority to hold an
enquiry into the charges/imputations till the conclusion of the
enquiry of Enquiry Officer. The stage of appointment of Enquiry
Officer arises immediately on formation of opinion by the Disciplinary
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Authority to conduct enquiry through an Enquiry Officer and such
appointment formality is mandated in view of the form of (1) provided
by Statute, requiring it to be signed by Enquiry Officer. Sub-clause
(5) of the said Statute reads thus :-
(5) On receipt of written statement of defence and
on admission of any or all article(s) of charge(s) by the
teacher or on its non-receipt, the Disciplinary
Authority may further enquire or cause to enquire into
the charge(s) not admitted in the manner as
prescribed.
19. Having regard to the stage of enquiry provided herein this
case, the said provision could only mean that depending upon the
written statement submitted by teacher it may be open for the
Disciplinary Authority to make not admitted charges proved by
further enquiry. This only enables the Disciplinary Authority to
conduct or get conducted the enquiry into the charges not admitted
by teacher. It would further mean that in case of admission of
charges no further enquiry would be necessary. In case of State of
U.P. (supra) Full Bench of Allahabad High Court, was dealing with
the provision which permitted dropping of charges after filing of
written statement by Delinquent. As reflected in paragraph No. 13
(8.6) of judgment, on receipt of written statement of defence,
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Disciplinary Authority may appoint under sub-rule (2) an enquiring
authority for purpose of enquiring into articles of charges. In the
instant case, the appointment of the Enquiry Officer is not deferred
to stage of written statement and in any case it could not be so, in
view of charge-sheet being required to be signed by Enquiry Officer.
Full Bench in paragraph No. 17 of the judgment in case of State of
Punjab vs. V. K. Khanna (supra) considering the said rule went on to
observe as under :-
"17. The aforesaid circular quoted herein above, itself
goes to indicate that confusion, if any, stand clarified and
it is incumbent upon the disciplinary authority to consider
the written statement of defence submitted by the officer
and thereafter appoint the enquiry officer in the matter.
In the present case, it has to be seen that opposite party
No. 1 was not available before the disciplinary authority
and before any written statement of defence could be
submitted by the opposite party No. 1, the enquiry officer
has been appointed by the disciplinary authority. This
itself goes to indicate that the disciplinary authority has
not proceeded in the manner as provided under the Rule
and the requirement of Rule 8(6)(a) of 1969 Rules read
with circular dated 25.11.1981 stands altered and the
safeguard provided to the opposite party No. 1 by way of
consideration of his written statement of defence, also
stands nullified and his chance of convincing the
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disciplinary authority not to proceed in the matter, also
stands overruled. Opposite party no. 1 has submitted
his written statement of defence on 15.7.2015, but prior
to submission of the written statement of defence, enquiry
officer has already been appointed by the disciplinary
authority. Therefore, the opportunity as contemplated
under rule 8(6)(a) stands defeated by virtue of the
appointment of the enquiry officer prior to submission of
written statement of defence by the opposite party No. 1.
20. Considering totally different stages of appointment of
Enquiry Officer, said judgment would have no application to the case
in hand. Consequently, it cannot be held that there is non-
compliance of Statute in respect of appointment of Enquiry Officer.
21. Coming to the issue of fairness of the actual conduct of
enquiry is concerned, when the teacher has raised objection to the
appointment of the President of the Institution as Enquiry Officer,
the management has changed the Enquiry Officer and has appointed
a retired District Judge to conduct the Departmental Enquiry against
the teacher. Though it is canvassed that the retired District Judge is
not equivalent to the person to the rank of District Judge, however,
needless to say that the District Judge while in service cannot be
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permitted to take up any other work much less Departmental
Enquiry. The requirement of the Statute only to be considered for
appointment of a person who was of the cadre of District Judge. Even
the Tribunal has rightly not accepted the said contention of the
teacher citing provisions of the Maharashtra Civil Service Rules and
this Court agrees with the said finding recorded by the Tribunal in
that regard.
22. Insofar as the procedure followed in conduct of enquiry is
concerned, as per the demand of the teacher the entire enquiry
proceeding was videographed though it was not mandatorily required
to be done under the Statute. Perusal of the record of enquiry clearly
indicates that at all stages of the enquiry appropriate opportunity of
hearing was given to the teacher. Here in this case, the teacher has
cross-examined all the witnesses of the management and was
provided with relevant documents. At no stage of enquiry any
grievance was made by him. On the contrary, the record of enquiry
indicates that rules of natural justice were adhered to. In any case, it
was necessary for teacher to show non-compliance during enquiry
itself, so the same could have been remedied. Since, no such
occasion arose, there is no protest recorded by him.
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23. As far as the issue raised on behalf of the teacher with
regard to non-providing of the documents sought from the
management is concerned, it would be relevant to take note of the
judgment of the Hon'ble Supreme Court in case of State Bank of
India vs. Bidyut Kumar Misra (supra) which deals with the issue with
regard to the effect of non-requisitioning of the documents. The law
on the point is settled to say that in case relevancy of the documents
is not shown, non-requisitioning of the documents does not render
the enquiry void. Similarly, if no grievance is made during the course
of enquiry, no grievance in this regard is permissible to be raised at
the subsequent stage. Keeping in mind the law settled by the
Supreme Court in this regard, the issue sought to be raised is
considered.
24. It is contended on behalf of the teacher that certain
documents which were sought were not produced and this leads to
setting aside of the enquiry conducted against him. Insofar as those
documents are concerned, not only before the Enquiry Officer in the
Departmental Enquiry but even before this Court the teacher was
unable to substantiate relevancy of the said documents in respect of
the enquiry conducted against him. Mere non-supply of the copies of
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the documents would not lead to the conclusion that the enquiry
conducted against him is not fair and proper and what is required to
be shown is that any prejudice has been caused to him. Since the
documents in question were not relevant for decision of the enquiry
and for proof/dis-proof of the charges against the teacher, non-
supply of the said documents is not consequence on the fairness of
the enquiry.
25. At this stage, it would be relevant to take note of certain
portions of the proceeding conducted by the Enquiry Officer which
more than clearly substantiate that at all stages of the enquiry it was
ascertained from the teacher that due procedure has been followed
and complete opportunity of hearing has been provided to the
teacher. Some of the roznamas reflect following :-
Enquiry dated 31.01.2015
Clause No. 4 CSE has been asked whether he has received
the copies of the all these documents already. He replies
in the affirmative. However, he states that the copies of
said documents are not attested or certified by the
management. The objection taken by the CSE is valid &
in order to avoid any mischief, confusion, ambiguity it is
directed to the MR to certify all such documents under his
signature & seal of the Institution. CSE shall produce the
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copies of all such documents before the MR of any time
before the next date & MR shall certify the same so that
no adjournment shall be claimed by any party on the next
date. They shall coordinate in between them about date &
time.
Q. 1 Whether you have received the form of charges
issued against you him along with the necessary
documents annexed therewith i.e. exhibit M3 Page 1 to 17
& documents at page 1 to 83 ?
Ans : Yes, I have received all the said documents & the
form of charges.
Q. 2 Do you admit all the charges or any of the charges
of misconduct levied against you by the management ?
Ans : I do not admit any of the charge against me. I deny
all the charges.
Q. 3 Do you want to say at this stage anything ?
Ans : I have given all my say in Exhibit C-1.
Q. 4 Do you want to engage any defence representative or
the lawyer to defend yourself ?
Ans : No. I will defend myself.
Though no appointed defence representative,
Enquiry Officer allowed son of teacher to assist him in
sitting No. 2 of enquiry.
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Endorsements made at the end of each sitting of
enquiry indicate that both sides were provided with the
recordings forthwith
Request of time for further cross examination of
witness by teacher was granted (sitting No. 3)
Sitting No. 5 MR is further directed to ensure
that on or before the next date of documents agreed to be
produced by witnesses are produced by MR. Copies of the
same shall be served to CSE in advance.
Siting No. 6 : By EO to MR: Whether the
documents you were to file today have been brought for
producing the same in the enquiry & whether the copies
of the same are already supplied to CSE as per directions
given on the last date.
Sitting No. 9 : By EO to both the parties : Do you
want to make any submissions about any grievance or
about any opportunity required by you further more
before the arguments in writing are submitted & oral
submissions are heard.
26. The conduct of the enquiry as done by the retired District
Judge more than sufficiently demonstrate that the principles of
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natural justice were duly complied with and every possible
opportunity of defence has been provided to the teacher. In such
circumstances, it cannot be held that the enquiry conducted against
the teacher is not fair and proper requiring directions of conduct of
enquiry denovo. This Court, therefore, finds no fault in the conduct
of enquiry by Enquiry Officer and upto this stage the enquiry is held
to be fair and proper, requiring no interference therein.
27. Statute 231 requires the management to furnish to the
teacher copy of enquiry report and its findings on each article of
charge expressly stating whether he agrees with the findings of
Enquiry Officer or otherwise. In this regard, it is contended on behalf
of the teacher that the show cause notice does not indicate any
resolution being passed by the Chairman in respect of accepting the
report of the Enquiry Officer. At this stage, it would be relevant to
refer to Statute 231 which reads thus :-
Statute 231 :-
(1) The Disciplinary Authority, shall consider the
report and record his findings on each charge.
Action on Enquiry Report :
(2) The Disciplinary Authority, himself not being
the Enquiry Officer, shall consider the enquiry report
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and if he disagrees with the Enquiry Officer on any
article(s) of charge(s), he shall record its reasons for
such disagreement and refer the case back to the
Enquiry Officer for further enquiry and report. The
Enquiry Officer shall thereon proceed to hold further
enquiry according to the provisions of the preceding
Statutes.
(3) The Disciplinary authority, having regard to
the findings on the charges, comes to the decision
that no penalty be imposed or that the teacher be
exonerated, it shall so order.
(4) If the Disciplinary Authority, having regard to
the findings, comes to the conclusion that any of the
minor penalties be imposed on the teacher, it shall
notwithstanding anything contained in these
Statutes, determine what penalty shall be imposed, it
shall so order. The order should be issued in the
form appended.
(5)(a) If the Disciplinary Authority having regard to
its findings on all or any of the articles of charge,
comes to the conclusion that any of the major
penalties be imposed on the teacher, he shall
(i) furnish to the teacher, a copy of the Enquiry
Report and his findings on all or any of the articles of
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charge, expressly stating whether he agrees with the
findings of the Enquiry Officer or otherwise, together
with brief reasons for his disagreement, if any; and
(ii) give to the teacher a notice in the form
appended, stating the penalty proposed to be
imposed on him by calling upon him, to submit
within fifteen days of receipt of the notice or such
further time not exceeding fifteen days, as may be
allowed, such representation as he may wish to
make on the proposed penalty and the cause as to
why the penalty, be not imposed on him.
(b) The Disciplinary Authority shall consider the
representation, if any, made by the teacher and
determine the quantum of penalty that be imposed
on him on the basis of the evidence adduced.
(6) The final orders made by the Disciplinary
Authority under this Statute shall be communicated
to the teacher and the Enquiry Officer. A second
show-cause notice shall be issued to the teacher
before the penalty is executed.
28. This provision indicates that the management is required
to record its findings on each article of charge expressly stating
whether he agrees with the findings of Enquiry Officer or otherwise.
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Could it be said that this exercise is required to be done in respect of
two different contingencies. Firstly, in the enquiry the charges are
held to be proved and the management accepts the same and
proceeds further to take action against the delinquent and secondly,
the Enquiry Officer's findings are to be turned over, a specific finding
on each article of charge is required to be stated for referring back the
case for further enquiry by Enquiry Officer. Sine these two situations
are totally different, the same yardstick cannot be applied thereto.
When there is proof of charge against the delinquent in an enquiry
and the management proposes to take action against the delinquent
on the basis of said proved charges, meaning thereby the
management accepts the report and the findings of the Enquiry
Officer. It is only when the management wishes to differ with any of
the findings, the findings on each article of charge may be required to
be expressly stated. In the second scenario, when the management
wishes to take different view than the view taken by the Enquiry
Officer, such recording of findings would be mandatory as it would
cause prejudice to the delinquent, if any further enquiry is proposed.
This, however, cannot be so in case the management wishes to accept
the report of the Enquiry Officer as it is. In the instant case, the
report of the Enquiry Officer has been accepted by the management
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and merely because no findings on each article of charge are
expressly stated, it does not become a ground for setting aside the
enquiry since no prejudice has been caused to the teacher by the
same.
29. In this regard it is the case of the Institution that a
resolution was passed on 04.04.2015, accepting the report of
Enquiry Officer and based upon the said resolution show cause
notice came to be issued. This submission is countered by the
teacher by contending that no resolution is referred in show cause
notice nor it was placed before the Tribunal.
30. Perusal of the record indicates that the resolution dated
04.04.2015 has been placed on record of the Petition but the record
and proceeding before Tribunal does not show any such resolution
being filed. Now question arises as to whether there would be any
material difference to the defence of the teacher in responding to the
show cause notice by submitting or not submitting the resolution
along with the show cause notice. In case any prejudice is shown to
have been caused, there could be substance in the contention of the
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teacher but in absence thereof, non furnishing of resolution would
not become ground to set aside the order of termination.
31. In the result, the order passed by the Tribunal of
directing fresh enquiry into the charges is not sustainable and hence
set aside. The matter is relegated back to the Tribunal to decide
issue of perversity of finding, if any, and proportionality of
punishment, after hearing both sides.
32. Both Petitions stand disposed of in above terms.
( R. M. JOSHI)
Judge
33. Learned Counsel for the Petitioner in Writ Petition No.
5913/2018 seeks stay of this order to enable the parties to challenge
the said order before the Hon'ble Supreme Court for a period of six
weeks.
34. Learned Counsel for the Respondent submits that if the
order passed by this Court is to be stayed, the interim relief granted
in Writ Petition No. 927/2018, be continued till that time.
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35. In view of this, in Writ Petition No. 5913/2018, the order
is stayed for a period of six weeks. Needless to say that interim relief
granted in Writ Petition No. 927/2018 to continue till then.
( R. M. JOSHI)
Judge
dyb
