Bombay High Court
Hyderbad (Sind) National Collegiate ... vs Smt. Nisha Rajput And Ors. on 18 July, 2003
Equivalent citations: 2004(1)BOMCR756, 2004(1)MHLJ596
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned Advocate for the petitioners and the respondent No. 1. Perused the records.
2. The petitioners are challenging the order dated 31-8-2000, passed by the University and College Tribunal allowing the appeal filed by the respondent No. 1 against the order of reduction in rank passed on 8-3-1999 whereby she was reverted from her post of senior clerk to junior clerk. By the impugned order, the petitioners have been directed to reinstate the respondent No. 1 to her original post of senior clerk and to pay the arrears of salary from the date of her reversion till the date of reinstatement.
3. The impugned order is sought to be assailed, firstly, on the ground that the Tribunal erred in holding that the Rector and Secretary of the petitioner No. 1-Board was not a competent authority to hold departmental enquiry and to take decision regarding imposition of penalty and that the decision for reversing the respondent No. 1 from the post of senior clerk to junior clerk cannot be sustained when in fact the provisions of law contained in the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-Teaching Employee) Rules, 1984, hereinafter called as "the said Rules" r/w the Constitution of the petitioners clearly disclose such power in the holder of the office of the Rector and Secretary and secondly it is challenged on the ground that the Tribunal erred in disbelieving the testimony of the Principal Kranti Kumar and the evidence of the witness Dwivedi and that the findings in that regard being contrary to the materials on record. On the other hand, attempt on the part of the petitioners to call for interference by this Court in writ jurisdiction is objected to on the ground that the finding regarding the evidence of the Principal and the witness being untrustworthy, has been arrived at on analysis of the evidence on record and the same being a finding of fact, cannot be interfered with in writ jurisdiction and in any case the same cannot be said to be contrary to the materials on record as the evidence clearly supports the said finding. As regards the power of the Rector and Secretary to take disciplinary action, the learned Advocate for the respondent No. 1 fairly submitted that the provisions of law appear to be in support of the petitioners in that regard, however, has submitted that in view of the finding about absence of evidence in support of charge of misconduct on the part of the respondent No. 1, no interference is called for in the impugned order even on merits.
4. The Rule 44A(1) of the said Rules provide that the competent authority is empowered to impose any of the penalties which are enumerated under the Rule 43 which includes major penalties like reduction to a lower stage. The Sub-rule (2) of the Rule 44A provides that:--
(2) Without prejudice to the provisions of Sub-rule (1), Appointing Authorities may impose any of the penalties specified in Rule 43 upon members of class III and IV services serving under them, whom they have power to appoint:"
It is not in dispute that the respondent No. 1 was the member of Class III and the Rector and Secretary was the appointing authority of the respondent No. 1, Being so, the penalty in the nature of reversion from the post of senior clerk to junior clerk could have been imposed by the appointing authority i.e., the Rector and Secretary and hence the finding of the Tribunal regarding absence of such power to the Rector and Secretary cannot be sustained and is liable to be set aside.
5. As regards the charge of misconduct against the respondent No. 1, the Tribunal, taking note of the previous instances, and that the Principal is the interested witness, and there was a delay in issuing the chargesheet and holding the departmental enquiry, has disbelieved the testimony of the Principal. The evidence of the witness Dwivedi has also been disbelieved merely on the ground that the testimony of the Principal cannot be believed.
6. It cannot be disputed that while considering the case on the whole in relation to the charge of misconduct levelled against the respondent No. 1, no fault can be found with the Tribunal having considered the past instances and the delay in issuing the chargesheet as well as holding the departmental enquiry, more particularly when there was no material available on record explaining the delay in the matter. However, at the same time, it cannot be said that the finding in relation to misconduct arrived at in the departmental enquiry can be set aside merely on the basis of such delay in issuing the chargesheet or holding the departmental enquiry or by calling the main witness to the incident to be an interested witness. Besides, merely because the alleged incident is in relation to the Principal, it cannot be concluded, without any basis, that the Principal is an interested witness and, therefore, his testimony cannot be believed. Before arriving at any such finding, it was necessary for the Tribunal to analyse the testimony of the Principal and based on such analysis, certainly, taking note of the additional factors like the delay in issuing the chargesheet and holding the enquiry, without any explanation for such delay, could have been, perhaps a ground to characterise the witness as an interested witness. It cannot be forgotten that the witness concerned was the person responsible for ensuring discipline in the institution, and the charge levelled against the respondent No. 1 was in relation to misconduct arising out of the alleged act of indiscipline on the part of the respondent No. 1. Being so, it was necessary for the Tribunal to analyse the entire evidence in proper perspective before arriving at the finding that the testimony of the Principal could not be believed. In the circumstances, the said finding of the Tribunal cannot be sustained. As it further reveals that the testimony of the witness Dwivedi has been disbelieved merely because the testimony of the main witness is unbelievable, for the same reason, the said finding also cannot be sustained.
7. As rightly submitted by the learned counsel for the respondent No. 1, in writ jurisdiction, it is not permissible for this Court to re-assess the evidence and as the findings arrived at by the Tribunal cannot be sustained, the same having been arrived without analysing the materials on record, it will be in the fitness of the case to remand the matter to the Tribunal to analyse the entire materials on record in proper perspective and to arrive at the correct finding in the matter.
8. Before parting with the matter, however, it is necessary to take note of a disturbing factor which has been brought to the notice of this Court. It appears that the entire incident arose on account of the fact that a red line was found to have been drawn in relation to the days from 5th to 9th June, 1997 on the muster roll as against the name of the respondent No. 1. Undisputedly, the respondent No. 1 had attended to the duties on 6-6-1997. No doubt she had absented herself from 2nd to 4th June, 1997. The said absence was subsequently condoned by way of grant of leave for the said period. Merely because an employee had remained absent for two or three days in a week, in the absence of any rule, no employer can be permitted to draw such a line for the remaining days of the week on the assumption that even on those days the employee would not attend to his/her duties. It is only when the day on which the employee remains absent, the employer would be entitled to denote cross-mark on the muster roll as against the name of the said employee. However, merely because for one or two days the employee has remained absent in a week, in anticipation that the employee may also remain absent on the remaining days of the week, the employer is not entitled to make any mark disclosing the absence of such an employee for such remaining days of the week, and that too, in advance.
9. Considering the fact that the Tribunal has not analysed the evidence on record and has merely observed that the testimony of the Principal and the witness Dwivedi is unbelievable, the impugned judgment and order deserves to be set aside and the matter remanded to the Tribunal to re-assess the evidence in accordance with the provisions of law and to arrive at the correct findings in that regard. Needless to say that since' the matter relates to the period prior to 1998, the Tribunal should expedite the hearing of the matter and shall dispose of the same, after hearing the parties, within three months from the date of receipt of the writ of this Court.
10. In the result, therefore, the petition succeeds. For the reasons stated above, the impugned judgment and order is set aside and the matter is remanded to the Tribunal to decide the same afresh, in accordance with the provisions of law and bearing in mind the observations hereinabove. It is made clear that this Court has not expressed any opinion on the merits of the case. The rule is made absolute accordingly with no order as to costs.