Bombay High Court
Shri Shivaji Education Society, ... vs Maharashtra University Of Health ... on 30 June, 2017
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2718 OF 2015
PETITIONERS : 1] Shri Shivaji Education Society, Amravati,
(Maharashtra State), through its President,
Shivaji Nagar, Amravati - 440 603
2] Shri Shivaji Education Society, Amravati,
(Maharashtra State), through its Secretary,
Shivaji Nagar, Amravati - 444 603
VERSUS
RESPONDENTS: 1] Maharashtra University of Health Sciences,
Wani Road, through its Registrar,
Mhasrul, Nashik - 422 004.
2] Grievance Committee,
Through its Chairperson,
Maharashtra University of Health Sciences,
Wani Road, Mhasrul,
Nashik - 422 004.
3] Dr. Padmakar S/o Rambhau Somwanshi,
Aged about 59 years,
Occupation - Medical Practitioner,
R/o Somyukta Hospital Building,
University Road, Camp - Amravati.
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Mr. K. H. Deshpande, Senior Advocate with Mr. S.V. Purohit,
Advocate for the petitioners.
Mr. Abhjeet L. Deshpande, Advocate for respondent nos.1 and 2
Mrs. Neeta Jog with Mr. S.S.Shingane, Advocates for Resp.No.3
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CORAM : PRASANNA B. VARALE, J.
Judgment reserved on : May 02, 2016.
Judgment pronounced on : June 30, 2017
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JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the respective parties. 2] The petitioner - Shri Shivaji Education Society, is a society and trust, duly registered under the Societies Registration Act, 1860 and also under the Bombay Public Trust Act, 1950, respectively. The petitioner-society runs various institutions and colleges imparting education. The petitioner-society, by this petition, challenges the report of respondent no.2 - Grievance Committee, through its Chairperson, Maharashtra University of Health Sciences, Nashik (hereinafter referred to as 'the Grievance Committee' for the sake of brevity), dated 28.11.2014 ; a Resolution dated 17.3.2015 passed by the Management Council of respondent no.1 - Maha- rashtra University of Health Sciences, Nashik (hereinafter referred to as 'the University' for the sake of brevity) ; and the communication of the Registrar of respondent no.1 University, dated 17.3.2015. 3] The facts, in brief, giving rise to the present petition can be stated thus -
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3 WP2718.15.odt Respondent no.3 - Dr. Padmakar Somwanshi was initially appointed as a Reader by the petitioner-society in the medical college namely Dr. Panjabrao alias Bhausaheb Memorial Medical College in the year 1987. Later on, he was appointed as a Professor in the year 1988 and in the year 1994, he was appointed as an Officiating Principal. His appointment was under challenge before this Court in a writ petition. It may not be necessary to refer to the other details. The respondent no.3 was then appointed as a Dean in the year 1997 vide order dated 20.09.1997 and this order was also the subject matter of Writ Petition No. 3774/1997. The said writ petition is pending before this Court.
4] On 01.8.2007 / 02.8.2007, a team from Income Tax Department reached the aforesaid college with a warrant in the name of respondent no.3. A raid was conducted by the team of the Income Tax Department and in the raid/search/survey, cash amount of Rs.47,30,665/- was found in the Safe of the college. As no record was available in relation to the amount of Rs.46,17,000/-, the said amount was seized by the Income Tax Department. The respondent no.3 was enquired by the said team of the Income Tax Department. ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 :::
4 WP2718.15.odt He was also asked to provide the receipts of the said amount. At the relevant time, the respondent no.3 was unable to provide any proper explanation and subsequently he submitted that the amount was towards donation. As the matter was reported in the newspapers, the petitioner-society took serious note of the matter and asked the respondent no.3 to proceed on compulsory leave for three months, by order dated 07.8.2007.
5] On 18.8.2007, the petitioner-society formed a Fact Finding Committee, consisting of five members for an enquiry. The said Fact Finding Committee submitted its report, dated 23.11.2007 with the observation that the respondent no.3 had misappropriated the funds of the college and was responsible for the irregularities and the mismanagement. On the basis of above referred report, the President of the petitioner-society issued an order of suspension and constituted an Enquiry Committee for conducting the Disciplinary Enquiry against the respondent no.3. Charge-sheet was issued to respondent no.3 containing 18 charges along with an order of suspension. The Executive Committee of the petitioner-society, in its meeting dated 17.2.2008, passed Resolution Nos.61 and 62, thereby ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 5 WP2718.15.odt approving the report of the Fact Finding Committee and gave an approval to the action of the President of issuance of charge-sheet and order of suspension. The said Resolutions were unanimously passed. The Minutes of Meeting, dated 17.2.2008 were confirmed in the Executive Committee meeting on 04.5.2008. 6] On 14.7.2008, additional charge-sheet was issued by framing 5 additional charges and on 07.10.2008, one more additional charge was framed against the respondent no.3. The respondent no.3 submitted his written submissions/reply on 21.08.2008, 18.7.2008 and 15.2.2009, respectively. The meetings of the Enquiry Committee were held from 05.6.2008 to 12.09.2009. The petitioner-society examined six witnesses on its behalf, whereas the respondent no.3 examined four witnesses. It is the case of the petitioner-society that the enquiry was conducted by following the principles of natural justice as well as by following the other settled Rules of an enquiry. Out of 24 charges framed against respondent no.3, 14 charges were found to be proved as per the enquiry report. The enquiry report was submitted on 26.09.009. ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 :::
6 WP2718.15.odt 7] In the meantime, one Dr. G.V.Patil, the ex-Vice Chancellor of Amravati University made a complaint to the State Government and prayed for high level enquiry in the matter on the backdrop of the fact that there was a raid conducted by the Income Tax Department in the medical college. Accordingly, a Three Member Committee was appointed to conduct an enquiry on the complaint of Dr. Patil. The said Enquiry Committee submitted its report observing that there were certain financial irregularities and the record was not properly maintained.
8] The report of Departmental Enquiry dated 26.09.2009 was placed before the Executive Committee of the petitioner-Society on 19.11.2009. The Executive Committee unanimously accepted the enquiry report and additionally, authorized the President to take all the further steps in the matter. The said resolution of the Executive Committee was unanimously passed. On 10.12.2009, a show cause notice was issued to the respondent no.3 along with a copy of enquiry report, asking him to submit written explanation, if any. 9] It is the case of the petitioner-society that an employee of the petitioner- society was deputed to serve the show cause notice ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 7 WP2718.15.odt with the enquiry report to the respondent no.3 and upon reaching the residence/hospital of respondent no.3, it was learnt that father of respondent no.3 was not well and as such, the petitioner-society asked the said employee to serve the copy of show cause notice and enquiry report upon one Smt. Maya Bobde, who was an employee of respondent no.3 in his private hospital. It is the case of the petitioner-society that thus, the show cause notice and enquiry report was duly served and the signature of said lady employee was also obtained in the dak-book of the college.
10] On 11.01.2010, the respondent no.3 was dismissed from the services of the petitioner-society. Though, the petitioner-society wanted to serve the order on the respondent no.3 and as the respondent no.3 did not come forward to receive and accept the order, the said order was forwarded through the postal communication i.e. through Registered post and the same was served on respondent no.3 on or about 16.1.2010. Thereafter, the respondent no.3 gave an application to the petitioner-society submitting that he has not received certain documents. The application/communication of respondent no.3 was replied by the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 8 WP2718.15.odt petitioner-society stating that all the necessary documents such as show cause notice and enquiry report are duly served on him. 11] The respondent no.3, feeling aggrieved by the order of dismissal, dated 11.01.2010, approached the respondent no.2 - Grievance Committee by presenting an appeal under Section 53 of the Maharashtra Universities of Health Science Act, 1998. The petitioner-society opposed the appeal by filing reply along with the documents and the respondent no.3 filed his re-joinder to the reply. The respondent no.2 - Grievance Committee made a report and recommended to the Management Council to set aside the dismissal order. The Management Council accepted the report and passed the resolution accordingly. The report of the Grievance Committee and the resolution passed by Management Council were the subject matter of Writ Petition No. 4065/2010 preferred by the respondent no.3. By order dated 04.10.2011, this Court was pleased to remand the matter back to the Grievance Committee. On remand by this Court, the Grievance Committee again heard the matter and recorded its finding and by its report, recommended to the Management Council for quashing and setting aside the order of ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 9 WP2718.15.odt dismissal. The Grievance Committee was of the opinion that there were gross irregularities in conduct of the enquiry proceedings. The Grievance Committee recommended that the respondent no.3 should be reinstated and should be given all the consequential benefits. The Management Council, on 02.3.2012 on receipt of the report of the Grievance Committee, passed resolution thereby quashing and setting aside dismissal order of respondent no.3 and directed the petitioners to reinstate the respondent no.3 along with all consequential benefits. The report of the Grievance Committee and resolution of the Management Council and the communication forwarded by the respondent no.1 -University on the basis of resolution of the Management Council, were challenged by the petitioner-society by filing Writ Petition No. 3683/2012. On a query made by this Court to the respondent no.3 about his grievance with the management, the respondent no.3 stated that he wanted a clean service report by withdrawal of stigmatic dismissal order. 12] It is the case of the petitioner-society that the respondent no.3 submitted before this Court that he is not interested in monetory compensation or back wages. A pursis dated 17.10.2013 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 10 WP2718.15.odt was filed by the respondent no.3 before this Court containing a proposal. The petitioner-society accordingly considered the proposal of respondent no.3 and a resolution was passed on 29.10.2013. However, the respondent no.3 backed out from his proposal. 13] In Writ Petition No. 3683/2012, this Court found that the order of the Grievance Committee was passed without a proper coram and as such, this Court again remanded the matter back to the Grievance Committee for decision afresh. The respondent no.3 submitted his representation and the petitioner-society filed its additional submissions. The respondent no.2 - Grievance Committee prepared its report. It is the case of the petitioner-society that this report was not signed by all the members of the Committee. On receiving the report, the Management Council expressed its opinion that it will be better if the parties settle the dispute amicably between themselves. Accordingly, a resolution was passed. It is the further case of the petitioner-society that respondent no.3 was not ready for the terms of compromise and was insisting for back wages. As such, the respondent no.2 - Grievance Committee submitted its report on 03.3.2015 to the Management Council. It is the further case of the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 11 WP2718.15.odt petitioner-society that the Management Council by a cryptic Resolution confirmed the report of the Grievance Committee. Thus, the report of the grievance Committee and the resolution of the Management Council are challenged in this petition by the petitioners. It can safely be said that the petition is having checkered history and rounds of litigation.
14] Mr. K. H. Deshpande, the learned Senior Counsel assisted by Mr. S.V. Purohit, learned counsel for the petitioners, vehemently submitted that the impugned report of respondent no.2 - Grievance Committee, the resolution passed by the Management Council and in turn the communication forwarded by the respondent no.1 - University to the petitioner-society, are clearly unsustainable on more than one grounds. The learned senior counsel, by heavily attacking the impugned report of the Grievance Committee, submitted that the Grievance Committee has acted in excessive exercise of the powers. He submitted that the Grievance Committee, established under the Maharashtra Universities Act, initially, though did possess the power to settle the disputes and subsequently, under the Maharashtra Health University Act, also do possess the same ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 12 WP2718.15.odt powers.
15] Mr. Deshpande, the learned senior counsel vehemently submitted that the Grievance Committee has exceeded in exercising its powers while submitting the report, thereby passing declaratory order. He then submitted that even the Management Council do not possess any power to pass resolution, thereby directing the petitioner-society to reinstate the respondent no.3. Mr. Deshpande, the learned senior counsel then submitted that such powers are the special powers and under the provisions of the Industrial Disputes Act, more particularly under Section 11A, the learned Member of the Industrial Court can pass the orders for reinstatement, as these powers are conferred under the Act. Such is not the case with the Grievance Committee is the submission of Mr. Deshpande, the learned senior counsel. He further submitted that the power of reinstatement also vests with the Presiding Officer, School Tribunal under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, but the same power cannot be equated with the power of the Grievance Committee.
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13 WP2718.15.odt 16] It was the submission of Mr. Deshpande, the learned senior counsel for the petitioners that a remedy of appeal is provided under the MEPS Act, which lies before the School Tribunal and the School Tribunal by exercising those powers may issue directions to the society/institute to reinstate the employee, but in any case the Grievance Committee can not exercise such powers. It was the submission of the learned senior counsel that the services of the respondent no.3 were governed under a contract with the petitioner- society. He further submitted that though, it was submitted before the Grievance Committee that the appointment of respondent no.3 as Dean and his recognition in the post of Professor are the matters which are subjudised before this Court, the Grievance Committee could not have recorded the finding against the petitioner-institute. 17] Mr. Deshpande, the learned senior counsel then submitted that the petitioner-society had initially constituted a Fact Finding Committee and subsequently Departmental Enquiry was initiated against respondent no.3. He further submitted that the Departmental Enquiry was conducted against respondent no.3 by following the principles of natural justice namely giving opportunity ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 14 WP2718.15.odt of hearing and following the settled rules of the Departmental Enquiry. He submitted that respondent no.3 had participated in the enquiry and had supported his case by examining the witnesses of the petitioners and presenting his own witnesses. The learned senior counsel then submitted that the Enquiry Committee, by evaluating the material in the form of documents as well as in the form of statements of witnesses, arrived at the conclusion that all the major charges against respondent no.3 were proved and accordingly, the order of dismissal was passed.
18] Mr. Deshpande, the learned senior counsel for the petitioners then submitted that the necessary steps, such as establishing the Fact Finding Committee, then Enquiry Committee, were taken in accordance with the Constitution of the petitioner- society. The resolutions to that effect were passed. He then submitted that majority of the Members of the petitioner-society supported the resolutions. He then submitted that the Minutes of Meeting were approved as per the Constitution of the Society and sanction of the President was also obtained. The learned senior counsel then submitted that the Grievance Committee, by erroneous ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 15 WP2718.15.odt appreciation of the material, took a contrary view against the view in the Departmental Enquiry. The learned senior counsel submitted that the conclusions arrived at in the Departmental Enquiry, were by following the principle of preponderance of probabilities. He then submitted that the Grievance Committee has acted as if it was sitting over the Departmental Enquiry as an appellate forum and proceeded with the charges against the respondent no.3 to say that the charges are not proved beyond reasonable doubt. Mr. Deshpande, the learned senior counsel submitted that the principle of proving the charges beyond reasonable doubt is applicable in criminal cases and the same is not applicable in the matters of Departmental Enquiry. 19] It was also the submission of Mr. Deshpande, the learned senior counsel for the petitioners that the respondent no.3 was acting as a representative of the management in view of the provisions of the MHUS Act as he was occupying the post of Principal and the Grievance Committee is empowered to adjudicate the dispute between the teacher and the management. He submitted that as the respondent no.3 was the representative of the petitioner- society, the Grievance Committee could not have entertained the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 16 WP2718.15.odt dispute of respondent no.3. He then submitted that the observations of the Grievance Committee are contrary to the record. Mr. Deshpande, the learned senior counsel submitted that the Grievance Committee has erroneously observed that the power of the governing council was exercised by one man only and no post-facto sanction was given to the decisions of initiating enquiry against respondent no.3 or passing the orders of dismissal of respondent no.3. He submitted that the material was submitted before the Grievance Committee that the governing council was consisting of more than one member and in the Constitution of the petitioner-Society, there is provision of post-facto sanction of the President and such post- facto sanction of the President was not obtained. The learned senior Advocate submitted that as per the Constitution of the petitioner- society, the Management Council can take decisions in cases of emergency and in such emergencies, it was not necessary to obtain sanction from the President.
20] Mr. Deshpande, the learned senior counsel for the petitioners then submitted that the Grievance Committee also erred in observing that the additional charges against the respondent no.3 ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 17 WP2718.15.odt could not have been framed and no opportunity was granted to the respondent no.3 to meet with the additional charges. The learned senior counsel submitted that the petitioner-society, on the availability of the material, was justified in framing the additional charges. The learned senior counsel, in support of his submissions invited my attention to the copy of the Constitution of the society placed on record. He then submitted that there were serious charges against the respondent no.3 such as unaccounted money found in the office, that too in the drawer of respondent no.3 when he was an Officiating Dean. The raid was conducted by the Income Tax Department in the college run by the petitioner-society and the same was given vide publicity in the newspapers, thereby causing loss to the reputation of the petitioner society in the public eye. The learned senior counsel then submitted that the other serious charges were namely non-payment of salary of the employees, purchase of Sonography machine, submitting falls bills for personal telephone used by respondent no.3, withdrawal of the amount from medical store and breach of an undertaking to the Court in respect of Sonography machine by the respondent no.3 etc. The learned senior counsel for the petitioner thus submitted that the necessary evidence ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 18 WP2718.15.odt in the form of record and the statements were already assessed by the Departmental Enquiry Committee and neither the Grievance Committee nor this Court can re-appreciate the evidence. He submitted that the recommendations of the Grievance Committee could not have been accepted by the Management Council as the report of the Grievance Committee was not signed by all the members.
21] Mr. K.H.Deshpande, the learned senior counsel for the petitioners, in support of his submissions, placed reliance on the following judgments -
Sr. Description
No.
1) (2015) 3 SCC 101
General Manager -Vs- R Periyasamy
2) (2011) 4 SCC 84
State Bank of Bikanare -Vs- Nemichand
3) (2010) 9 SCC 496
Kranti associates-vs Masud Ahameed
4) (2013) 12 SCC 573
Atlas Cycle -vs- Kitab Sing
5) AIR 1970 SC 1302
M/s Mahabir Prasad -Vs- State of Utter Pradesh.
6) (1996) 3 SCC 119
M/s M.L. Jagi - Vs- Mahanagar Telephon
7) (1969) 3 SCC 868
M/s Tavancore Rayon -Vs- UOI
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19 WP2718.15.odt
8) (2013) 3 SCC 372
State of Utter Pradesh -vs Ashok Kumar
9) AIR 2004 SC 1373
M/s Pearlite Lineors -vs- Manorama Sirsee
10) (1976) 2 SCC 58
Executive Committee -vs- Laxminarayan
11) 2010 (5) Mh.L.J. 33
Maharashtra University of Health Sciences -vs- Satchikitsa Prasarak Mandal.
12) Writ Petition No. 4701/2014 Takhatmal Shrivallabh -vs- The member Industrial Court.
14) (1973) 2 SCC 543 Sri Parameshwari Prasad Gupta V/s The Union of India 22] Per contra, Mr. Abhijeet Deshpande, the learned counsel for respondent nos.1 and 2 and Mrs. Neeta Jog with Mr. S.S.Shingane, the learned counsel for the respondent no.3 supported the impugned report of the respondent no.2 - Grievance Committee, the resolution passed by the Management Committee and the communication issued by the respondent no.1 University. 23] Mr. Abhijeet Deshpande, the learned counsel for respondent nos.1 and 2 submitted that the grounds raised by the petitioners in challenge to the power of the Grievance Committee is clearly unsustainable. He submitted that in the earlier round of ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 20 WP2718.15.odt litigation i.e. in Writ Petition No.4065/2010 and Writ Petition No.3683/2012, the petitioner-society had raised the very grounds. The learned counsel then submitted that in the earlier rounds of litigation, the matter was remanded back to the Grievance Committee for fresh decision. He submitted that the petitioners in earlier round though, raised the ground of jurisdiction of the Grievance Committee, while remanding the matter to the Grievance Committee under the orders of this Court, the petitioner-society did not seek any liberty for keeping the point of jurisdiction of the Grievance Committee or Management Council open to be agitated either before the authority or before this Court. The learned counsel then submitted that on the contrary, the petitioners on remand of the matter to the Grievance Committee, had participated in the proceedings.
24] Mr. Deshpande, the learned counsel for respondent nos.1 and 2 submitted that though, the petitioners raised grievance that the powers vests with the Grievance Committee to adjudicate the dispute between the management and teachers, he by inviting my attention to the provisions of the MUHS Act, submitted that the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 21 WP2718.15.odt Act takes into its sweep the Principal also and merely because the respondent no.3 was representing the management in some matters of administration, that cannot be a ground to submit that the respondent no.3 could not have approached the Grievance Committee for redressal of his grievance. Mr. Deshpande, the learned counsel for respondent nos.1 and 2 invited my attention to the provisions of the MUHS Act, more particularly Sections 53(1) and 53(2) to submit that the Act do not exclude from Grievances Committee's and Management Council's jurisdiction and power in the matters wherein there is a dismissal or termination after holding an enquiry or simple termination or dismissal. He submitted that the widest possible jurisdiction has been conferred upon the respondent no.2 - Grievances Committee. Mr. Deshpande then submitted that there is no power under the MUHS Act or the necessary directions issued to deal with the grievances and complaints of the concerned persons including the matters wherein there is a dismissal or termination after holding an enquiry. The learned counsel then submitted that the petitioners though raised a challenge to the report of the Grievance Committee and the resolution of the Management Council, the petitioners have not challenged the relevant provision of ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 22 WP2718.15.odt the Act and so long as the provision is there in the statute book, no fault can be found with the act of the Grievance Committee and its report. Mr. Deshpande, the learned counsel for respondent nos.1 and 2 submitted that the Grievance Committee, on subjective satisfaction of the material, found that majority of the charges were not proved against the respondent no.3, resultantly, the Grievance Committee submitted its report.
25] Mr. Deshpande, the learned counsel for respondent nos.1 and 2 then submitted that the submission of the petitioners that the Grievance Committee passed the order in directory nature, is unacceptable for the reason that the report is in recommendatory nature and accordingly, the Management Council also passed the resolution accepting the recommendations of the Grievance Committee and in turn the communication was issued to the petitioners by the respondent no.1 University. The learned counsel placed heavy reliance on the judgment of the Hon'ble Apex Court Court reported in 2010 (5) Mh.L.J. 33, in the case of Maharashtra University of Health Sciences and others .vs. Satchikitsa Prasarak Mandal and others. The learned counsel also invited my attention ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 23 WP2718.15.odt to the judgment delivered by myself in Writ Petition No. 4701 of 2014, dated 18.1.2016 (Takhatmal Shrivallabh Homeopathic Medical College and Hospital .vs. The Member, Industrial Court and another). The learned counsel for respondent Nos.1 and 2 also invited my attention to Direction No.5 of 2012, which is issued to provide the procedure to deal with the grievances of teachers including Principal/Dean and other non-teaching employees of the University, affiliated colleges, recognized institutions, University, Colleges and Institutions. The learned counsel Mr. Deshpande submitted that in the said direction, in clear and unambiguous words, it is stated that the Grievance Committee is empowered to entertain and consider the grievances or complaints of teachers including Principals/Dean. The learned counsel then submitted that in view of the provisions of the MUHS Act as well Direction No.5/2012, the petitioners cannot submit that the Grievance Committee was not empowered to decide the grievances of the respondent no.3.
26] Mrs. Jog, the learned counsel for respondent no.3, firstly by inviting my attention to the provisions of MUHS Act, vehemently submitted that the Act empowers the Grievance Committee to decide ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 24 WP2718.15.odt the disputes and the Grievance Committee committed no error in deciding the challenge raised by the respondent no.3 to the report of the Departmental Enquiry and ultimate order of dismissal. Mrs. Jog, the learned counsel then submitted that the Grievance Committee on a just and proper appreciation of the material found that the decision in the Departmental Enquiry was an erroneous decision. She submitted that the petitioners have utterly failed to prove the charges against the respondent no.3. She then submitted that in such a situation, the scope of judicial review would be limited one and in the present matter there is no scope for an exercise of judicial review. The learned counsel for respondent no.3 then submitted that as per the Constitution of the petitioner-society, the power of appointment and removal lies with the Executive Committee and the President alone cannot exercise such power. She invited my attention to the particular clauses of the Constitution of the society namely Clause 16(3), 10(e) and 11(a) and (b). Mrs. Jog, the learned counsel then submitted that though, the petitioners had appointed Fact Finding Committee on 23.11.2007, the copy of the report of the said Committee was neither submitted before the Grievance Committee nor it was supplied to the respondent no.3. The learned counsel then ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 25 WP2718.15.odt submitted that the findings of the Departmental Enquiry and imposition of the punishment is only under the signature of the President of the petitioner-society. The order dated 06.12.2007 is not approved by the Executive Committee. Mrs. Jog, the learned counsel further submitted that though, it was the stand of the petitioners that there was a post-facto sanction to the decision taken by the Management Council in its meeting and approved by the resolution, there was no sanctity to the resolutions. Mrs. Jog then submitted that the witnesses examined by the petitioner-society in the Departmental Enquiry were not supporting the case and in the cross-examination of these witnesses, the respondent no.3 was successful to show that these witnesses were not supporting the case of the petitioners.
27] Mrs. Jog, the learned counsel for the respondent no.3 placed reliance on the following judgments :
Sr. Description No. 1 2010 (3) SCC 786 Maharashtra University of Health Sciences and others V/s Satchikitsa Prasarak Mandal and others 2 Unreported judgment of this Hon'ble Court in W.P. No. 4701/2014 Takhatmal Shrivallabh Homeopathic Medical College and Hospital ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 :::
26 WP2718.15.odt v/s Member Industrial Court 3 Unreported judgment of this Hon'ble Court in W.P. No. 5823/2007 Satchikitsa Prasarak Mandal and others V/s Maharashtra University of Health Sciences and others.
4 (1983) 2 SCC 433 Titaghur Paper Mills V/s State of Orissa 5 W.P. No. 4065/2010 between Shri Shivaji Edn. Society, Amravati and others V/s Maharashtra University of Health Sciences and others 6 2000(4) SCC 108 Muni. Commissioner, Calcultta V/s Salil Kumar Banarjee 7 2007 (4) Mh. L.J. 258 Municipal Council Hinganghat V/s Sanjay Dhanraj Yenorkar 8 (2008) 9 SCC 1 Shamshad Ahmad and others v/s Tilak Raj Bajaj 9 (2010) 8 SCC 329- Shalini Shetty V/s Rajendra Patil 10 (2010) 11 SCC 233 General Manager (P) V/s Daya Singh 11 (2013)6 SCC 602, S R Tiwari v/s UOI 12 (1995) 6 SCC 279, State Bank of Bikaner V/s Prabhu Grover 13 (1977) 1 SCC 472, Tara Chand Khatri v/s Muni Corp. Delhi 14 (1989) 3 SCC 132, Marathwada University v/s Seshrao Chavan 15 (2008) 7 SCC 748, Deepak Agro Foods v/s State of Rajasthan 16 (1975) 1 SCC 559, Ramchandra Keshav Adke v/s Govind Joti 17 1989 (2) SCC 458 M/s Siddeshwari Cotton v/s U.O.I. 18 (1999) 1 SCC 759 Apparel Export Promotion Council V/s A.K. Chopra 19 (2009) 12 SCC 78 Union of India and others V/s Gyan Chand Chattar ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 27 WP2718.15.odt 28] On the backdrop of the submissions of the learned counsel for the respective parties, I have gone through the material placed on record. Perusal of the material show that a committee i.e. Fact Finding Committee was constituted for conducting enquiry under the Chairmanship of Dr. S.N. Patil and the said committee submitted its report on 23.11.2007. Insofar as the charges framed against respondent no.3 is concerned, the learned counsel for the petitioners and learned counsel for respondent no.3 made submissions in detail on practically each and every charge. It may not be necessary for this Court to refer either to all the charges or the submissions and counter submissions on it. The relevant charges for consideration are the alleged misappropriation and misconduct on the backdrop of raid conducted in the College by the Income Tax Department. The other relevant charge is in the nature of the allegation in respect of financial misdeeds, accepting the amount towards tuition fees from various students and instead of depositing the said amount in the accounts of the petitioner-society, the respondent no.3 withhold the same for long period and this act was amounting to misappropriation , misconduct and unlawful gain. The other charge was, respondent no.3 collected the amount towards ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 28 WP2718.15.odt salary of teaching staff to the tune of Rs.30,67,480/- for the period from March, 2005 to June, 2007 and utilized the same for personal benefits, thereby causing loss to the petitioner-society. The other charge was drawing an amount of Rs.10,16,548.22 from the medical store and utilizing the said amount for personal use. The other charge was of misbehaviour with the staff members. Then there was a charge of obtaining new ultra sonography machine by selling /exchanging the old machine by the respondent no.3 without seeking permission from the Court, though, an undertaking was given to the Court.
29] The respondent no.3, by submitting his written statement and reply denied all the charges. It was the submission of the respondent no.3 that all the material was not supplied to the respondent no.3 so as to counter the charges. It was also the submission of the respondent no.3 in the written statement and reply that the charges are vague and not supported by authentic documentary evidence. It was submitted by the respondent no.3 that when the alleged raid was conducted, he was not at his office of Dr. Panjabrao alias Bhausaheb Memorial Medical College. It was the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 29 WP2718.15.odt counter submission of the respondent no.3 that because of the newspaper publication in respect of the Income Tax raid and stand taken by the petitioner-society that it has nothing to do with the money seized during the Income Tax raid on 01.8.2007, his image and reputation was tarnished in the public at large. 30] Insofar as the charge of collection of the amount towards tuition fees and not depositing the same in the petitioner-society is concern, it was submitted by the respondent no.3 that the amount of advance tuition fees was accepted as per the directions of the President of the petitioner-society and the said amount was also deposited in the College office. The respondent no.3 also denied the charge of misbehaviour with the staff members. Insofar as the charge in respect of purchase and selling of ultra sonography machine is concerned, it was submitted by the respondent no.3 that the sonography machine earlier purchased by the college was outdated and was not in working condition. There was a committee for purchase of sonography machine, consisting of Head of the Department of Radiology, Hospital Superintendent, Vice President, Treasurer and the Executive members. It was submitted that as the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 30 WP2718.15.odt college was in need of new and updated sonography machine and as there was a buy-back offer from the dealer, under the collective decision of the purchase committee, new machine was purchased. The dealer from whom new machine was purchased had agreed to produce the old machine as and when required for the Court proceedings. Thus, it was submitted that the respondent no.3 had not committed any breach of undertaking given to the Court. 31] A specific stand was taken by the respondent no.3 that the petitioner-society on one hand claims that the it has no concern with the amount seized in the raid conducted by the Income Tax Department and on the other hand, the petitioner-society approaches the Income Tax department and Court below for return of the cash amount. Mrs. Jog, the learned counsel vehemently submitted that when the petitioner-society sought for return of the cash amount seized in the raid, it does not lie in the mouth of the petitioner- society that it has no concern with the said amount and only the respondent no.3 is responsible for the alleged misdeeds. My attention was invited to the stand taken by the President of the Society to claim the amount, supported with the statement on oath ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 31 WP2718.15.odt before the Income Tax authority that some time the petitioner-society approached the donors or some times donors approached the society for donations and the amount seized in the raid conducted by the Income Tax department was the amount of donation. The material placed on record show that the respondent no.3 had sought for the necessary documents to reply the additional charges and in the communication, dated 15.2.2009, stated that as he was not in receipt of all the necessary documents, he is submitting his reply under protest. Though, it was the stand of the petitioners that in the Departmental Enquiry the principle of natural justice was followed and an opportunity of hearing was granted to the respondent no.3, the material placed on record shows that the statement of charges was supplied to the respondent no.3 through one employee of the petitioner-society. It also reveals that said employee visited the residence of respondent no.3 and at the relevant time, the respondent no.3 was not available and the said statement of charges along with the notice, was served on one of the lady staff member working in the private hospital of the respondent no.3. 32] Perusal of the statements of witnesses in the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 32 WP2718.15.odt Departmental Enquiry show that witness no.6 namely Vinayak Patil, who was working as Accountant in the medical college of the petitioner-society, stated that the amount seized by the Income Tax department in the raid was the amount of donations collected from the donors. He stated that he had submitted the list containing the names of donors, amount of donation and receipt book number to the Assistant Commissioner of Income Tax department in response to the communication, dated 17.1.2008. The witness further stated that he used to keep the amount of donation in the treasury. In his cross-examination, he stated that the keys of said treasury were used to be kept in his possession. He further stated in the cross- examination that the college had not opened separate bank account for receiving donations. He further submitted in the cross- examination that the amount of donation was not in possession of the respondent no.3. Insofar as the charge in respect of ultra- sonography machine is concerned, this witness states that a new sonography machine was obtained under exchange of old machine and that decision was taken by the Purchase Committee. He then states that the dealer, from whom old sonography machine was exchanged, undertook to give an undertaking that he would present ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 33 WP2718.15.odt the old machine as and when directed by the Court. 33] Then there is statement of the witness of respondent no.3, namely Dr. Nilesh More. The statement of this witness shows that he was working as a Paediatrician in the Civil Hospital, Amravati from 22.12.2007 and was desirous of seeking admission for his wife in the medical college for DMRE course for which he visited the President of the society. He stated that on 01.8.2007, he was directed to deposit an amount of Rs.4 lakhs. On 01.8.2007, he had been to the office of the medical college of the petitioner-society so as to deposit the amount. On that day, the respondent no.3 asked him to wait for receipt of the amount. The said witness was waiting for receipt, but the respondent no.3 left the college and proceeded to the University for attending the meeting. Thus, the statement of this witness support the stand of the respondent no.3 that at the relevant time when the raid was conducted in the college, he was not present in the college and raid was conducted in his absence. 34] As stated above, as the petitioner-society as well as the respondent no.3 placed on record bulky material in respect of ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 34 WP2718.15.odt submissions and counter submissions as regards the charges, it is not necessary to refer to all the material in detail. This Court cannot act as an Appellate Authority over the decision of the Grievance Committee. Suffice to say that the Grievance Committee found that insofar as the charge in respect of the raid conducted by the Income Tax department and the amount seized in the raid, the only material against the respondent no.3 was his signature. There was no material against the respondent no.3 to show that the respondent no.3 was in possession of the said amount. The Grievance Committee also found that most of the charges were not proved against the respondent no.3. Insofar as the charge of withdrawing salary of the staff by the respondent no.3 is concerned, it reveals from the statements of the witnesses that there was no complaint of the staff against respondent no.3 for withholding the salary nor there was any material that respondent no.3 used the amount for his personal use. Thus, the material was falling too short to charge the respondent no.3 for an act of misappropriation of funds. 35] Insofar as other charge of collection of amount as donations from the students and not depositing the same with the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 35 WP2718.15.odt petitioner-society is concerned, the statements of witnesses reveal that one Mr. Ronghe was receiving the amounts and cheques of donations for and on behalf of the petitioner-society. Mr. Ronghe was not examined by the Enquiry Committee. Perusal of the material also show that though, it is alleged that there was misappropriation of the amounts, the petitioner society had not lodged any report with the police authorities for alleged misappropriation of the amount. 36] The respondent no.3 has placed on record a pursis thereby giving details of the findings of the Fact Finding Committee against the charges, findings of Departmental Committee and the findings of the Grievance Committee. Though, it was the attempt of the learned senior counsel Mr. Deshpande for the petitioners that the charges against the respondent no.3 are of very serious nature, perusal of the material show that the petitioner-society was unable to prove the charges with substantial and supportive material. No error was found in the conclusion arrived at by the Grievance Committee. 37] Though, Mr. Deshpande, the learned senior counsel for the petitioners vehemently submitted that the Grievance Committee ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 36 WP2718.15.odt exceeded in exercising its powers and on this ground the report of the Grievance Committee is unsustainable, I am unable to accept the submission of the learned senior counsel. It would be useful to refer to the relevant provisions of the MUHS Act i.e. Section 53, which read thus -
53. Grievances Committee.
(1) There shall be a Grievances Committee in the University to deal with the grievances of teachers and other employees of the University, Colleges, institutions and recognized institutions and to hear and settle grievances as far as may be practicable within six months, and the committee shall make a report to the Management Council.
(2) It shall be lawful for the Grievances Committee to entertain and consider grievances or complaints and report to the Management Council for taking such action as it deems fit and the decisions of the Management Council on such report shall be final.
(3) The Grievances Committee shall consist of the following members, namely:
(a) The Pro-Vice Chancellor Chairperson;
(b) Four members of the Management Council Members
nominated by the Management Council
from amongst themselves
(c) The Registrar Secretary Member
(4) The Registrar shall not have a right to vote.
38] Perusal of the aforesaid provision show that the Grievance Committee is not prohibited to deal with the grievances of ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:54 ::: 37 WP2718.15.odt teachers and other employees of the Universities and colleges. The term "College" is defined under sub-section 11 of Section 2 of the MUHS Act, which reads thus -
"2(11) "College" means a college imparting education in Health Sciences conducted by the University or affiliated to the University situated in the State of Maharashtra."
It is not in dispute that the respondent no.3 was the Officiating Principal and Dean. The Act also defines 'Principal or Dean' under sub-section 26 of Section 2 and the same reads thus -
"2(26) "Principal or Dean" means the head of a college, specialised educational institution, post- graduate centre or other recognized institution duly approved by the University."
Then, the term "Teachers" is defined under sub-section 35 of Section 2 of the Act, which reads thus -
"2(35) "Teachers" means full time approved Demonstrators, Tutors, Assistant Lecturers, lecturers, Readers, Associate Professors, Professors and other persons teaching or giving instructions on full time basis in affiliated colleges or approved institutions in the University."::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 :::
38 WP2718.15.odt 39] If the above referred provisions are read conjointly with Direction No.5 of 2012, it leaves no doubt that the Grievance Committee is empowered to deal with and decide the grievances of the teachers, Principals, Dean and non-teaching employees of the University, affiliated colleges or recognized institutions. 40] It would be interesting to note that in the earlier round before this Court, the petitioner-society had challenged the report of the Grievance Committee and this Court while dealing with the challenge in Writ Petition No. 3683/2012 was pleased to observe at paragraph 13 that -
13. Reliance is placed on the case of Chaganlal Girdhari Kundkar v/s Parmatma Ek Sewak Nagrik Sahakari Bank Ltd., Nagpur and others reported in 2009 (6) Mh.L.J. 463 to argue that Court cannot add words to Statute or replace the words, which are not there. In the ruling in the case of Executive Engineer Southern Electricity Supply Company of Orissa Ltd., (Southco) and another Vs. Sri Seetaram Rice Mill, 2012 (3) Mh.L.J. 536 (SC), relevancy of objects and reasons for enacting an Act is relevant consideration for the Court. In section 53 of MUHS Act, the provision for the Grievance Committee is to provide an effective grievance ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 ::: 39 WP2718.15.odt redressal forum to teachers and other employees. The Grievance Committee has wide powers to deal with the grievances of the teachers and other employees of the University, College, Institution and to settle their grievances as far as may be practicable within certain time frame. The Grievance Committee under the MUHC Act must provide for inbuilt competent Authority to solve the dispute arising inside the University or educational Institution or likewise . By creating such forum, the University exercises the Authority and jurisdiction as a loco-parent is over teachers both approved and unapproved, to provide effective redressal forum to teachers working in various Colleges affiliated with the university. The dominant statutory intention is to protect dignity of teachers against any kind of harassment which they may receive at their workplace. The term 'grievance' is not defined by the 1998 Act. It indicates some complaint about unfair treatment, protest or grumble or sort of protest arising due to infringement of right, ill-treatment, injury or injustice done or unfairness caused. The dictionary meaning shows that it is feeling of resentment over something believed to be wrong or unfair. Grievance committee is the creation of the Statute created to hear and settle the grievances expeditiously and report to the Management council in the prescribed form for consideration and ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 ::: 40 WP2718.15.odt follow-up decision in it's ensuing regular Meeting as far as possible. And to issue directions to be complied with within certain period. The intention of the law makers being to enable the grievance committee to hear and settle the grievance expeditiously and to report accordingly to the Management Council which in turn is required to take prompt action and to implement the decision. The MUHS Act aims at early expeditious hearing and decision and the report."
41] While dealing with an identical challenge and the aforesaid provisions of the MUHS Act, the Hon'ble Apex Court in the case of Mah. University of Health Sciences .vs. Satchikitsa Prasarak Mandal (supra), which is relied on by the learned counsel for the respondent nos.1 and 2, has observed thus -
"36. The purpose of setting up the Grievance Committee under Section 53 of the Act is to provide an effective grievance redressal forum to teachers and other employees. Any interpretation of 'teachers' under section 2(35) of the Act which denies the persons covered under section 2(35) an access to the said forum completely nullifies the dominant purpose of creating such a forum. It goes without saying that unapproved teachers need the protection of this forum more than the ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 :::
41 WP2718.15.odt approved teachers. By creating such a forum the University virtually exercised its authority and jurisdiction as a loco-parentis over teachers-both approved and unapproved and who are working in various colleges affiliated with it. The idea is to give such teachers and employees a protection against any kind of harassment which they might receive in their work place. The creation of such a forum is in tune with protecting the 'dignity of the individual' which is one of the core constitutional concepts."
42] In somewhat identical challenge in Writ Petition No. 4701/2014 (Takhatmal Shrivallabh .vs. Member, Industrial Court and another), I had an occasion to consider the issue and by relying and referring to the judgment of the Hon'ble Apex Court in Mah. University of Health Sciences .vs. Satchikitsa Prasarak Mandal (supra), it was observed by me at paragraph 8 that -
"As this Court had observed that the Grievances Committee takes and has to take into its fold all types of legal claims and further observation that the widest possible jurisdiction is conferred upon Grievances Committee by legislature. (emphasis supplied) The submission of learned counsel Shri Agnihotri that the Grievances Committee would have a limited jurisdiction ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 :::
42 WP2718.15.odt and issue to termination cannot be called in question before the Grievances Committee cannot be accepted. At the cost of repetition, it would not be out of place to mention that when this Court observed that when the Grievances Committee can deal with all possible grievances, that certainly includes the grievance of teaching employee or other employee and the grievances of illegal termination of teaching or non-teaching employees. The objection, thus, raised by the petitioner- institute was rejected by both the Courts on untenable grounds."
43] Considering the above referred aspects of the matter, I find no merit in the petition, the petition thus being devoid of merit, deserves to be dismissed and the same is accordingly dismissed.
Rule stands discharged. No order as to costs.
JUDGE 44] At this stage, Mr. Purohit, the learned counsel for the petitioners, on instructions, prays for stay to this judgment and order for a period of three months so as to enable the petitioners to approach the Hon'ble the Apex Court challenging the said judgment. ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 :::
43 WP2718.15.odt Mr. A.L.Deshpande, learned counsel for respondent nos.1 and 2 and Mrs. Neeta Jog, the learned counsel for respondent no.3 oppose the prayer.
Though, Mr. Purohit, the learned counsel for the petitioners prayed for stay for a period of three months so as to enable the petitioners to approach the Hon'ble Apex Court, I am not inclined to grant stay for a period of three months, as prayed for. However, in view of the submission of the learned counsel for the petitioners, this judgment and order is stayed for a period Four weeks only.
Civil Application (CAW) No. 1379 of 2017 Not on board. Taken on board.
In view of the judgment and order of this Court dated 30.6.2017 in Writ Petition No. 2718/2015, no order is required to be passed on this civil application. The civil application is disposed of accordingly.
JUDGE Diwale ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 01:15:55 :::