Chattisgarh High Court
Pandit Ravishankar Shukla University vs Pardeshi Ram Bhoi on 4 May, 2021
Author: Parth Prateem Sahu
Bench: P.R. Ramachandra Menon, Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 08.02.2021
Judgment delivered on 04/05/2021
Writ Appeal No. 418 of 2020
{Arising out of Order dated 15/09/2020 passed in WPS
No. 6023 of 2008 by the learned Single Judge}
• Pandit Ravishankar Shukla University, Raipur, through its
Registrar, Amanaka, G.E. Road, Raipur (C.G.)
------Appellant
VERSUS
• Pardeshi Ram Bhoi, aged about 47 years, S/o Shri Sadhu
Ram Bhoi, Presently working as Junior Superintendent, At
Pandit Ravishankar Shukla University Amanaka, G.E. Road,
Raipur, R/o Pandit Ravishankar Shukla Campus, Raipur (C.G.)
-------Respondent/Petitioner
For Appellant : Mr. Neeraj Choubey, Advocate.
For Respondent : Mr. Anurag Jha, Advocate.
Hon'ble Shri P.R. Ramachandra Menon, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
C.A.V. Order
Per Parth Prateem Sahu, J
1. Challenge in this appeal is to the order dated 15.09.2020 passed in W.P. (S) No. 6023/2008, whereby learned Single Judge allowed the writ petition, while setting aside the order of compulsory retirement held that the petitioner/respondent to be entitled for all consequential benefits including salary from the date of suspension till his rejoining along with interest @ 9% per annum.
2. Facts of the case in nutshell are that respondent/petitioner was 2 appointed as Book Attendant and was promoted on the post of Lower Division Clerk (LDC) on 31.01.1991. While working as LDC, he has been assigned the work of Examination Department of the appellant University, Raipur (henceforth "University'). He was also given charge of B.B.A. Examination Department. Respondent/petitioner, while holding the above charge, has accepted the examination form of B.B.A. of St. Vincent Palloti College, further issued admit cards with the seal and stamp of Deputy Registrar of the Examination. The Action of accepting the examination form of first year students of St. Vincent Palloti College was viewed seriously, because the Appellant/University has issued notice on 13.08.2007 mentioning therein that prior permission before accepting forms of St. Vincent Palloti College. For the aforementioned reasons, departmental proceedings were initiated against the respondent/petitioner and charge sheet was issued to him on 03.01.2008. Enquiry Officer was appointed, who after concluding the enquiry proceedings, has submitted its report to the competent authority finding charge No. 1 to be proved whereas other charges i.e. charges No. 2, 3 & 4 to be not proved. The disciplinary Authority considering the enquiry report has issued the order (Annexure P-1) on 16.10.2008 imposing penalty of compulsory retirement from services. This made the respondent / petitioner delinquent employee to 3 approach High Court by way of filing writ petition being Writ Petition (S) No. 6023 of 2008 on the grounds mentioned therein.
3. Appellant/University submitted reply to the writ petition, upon hearing respective parties and also considering the documents placed on record, learned Single Judge allowed the writ petition vide impugned order dated 15.09.2020. Learned Single Judge quashed the order dated 16.10.2008 i.e. order of punishment of compulsory retirement and further held the respondent/petitioner to be entitled for all consequential benefits including entire salary from the date of suspension till its rejoining along with interest @ 9% per annum.
4. Shri Neeraj Choubey, learned counsel for the appellant/University submits that the impugned order passed by the learned Single Judge is contrary to the evidence available on record. Enquiry Officer held Charge No. 1 to be proved wherein the entire act of respondent/petitioner was against the statute. He further submitted that the Enquiry Officer has submitted its report based on the evidence collected after full fledged enquiry. Disciplinary Authority considering the enquiry report has passed the order Annexure P-1 of compulsory retirement. Learned Single Judge has erroneously interdicted with order of punishment (Annexure P-1). Learned Single Judge has acted as an Appellate Authority and fell into an error in re- appreciating the evidence. Appellant/University has paid all 4 the retiral dues to petitioner after passing of the order of compulsory retirement (Annexure P-1). Hence, respondent/ petitioner is not entitled for the relief of backwages and, that too, with interest. He further pointed out that looking to the act committed by respondent/ petitioner, he has lost his credibility and, therefore, order passed by appellant/University vide Annexure P-1 is the appropriate punishment awarded to him. Learned Single Judge has not considered the entire service record wherein in past also, one other departmental enquiry was initiated against him wherein charges levelled against him was found proved and he was punished with the stoppage of three increments. Respondent/petitioner is in habit of not following the orders passed by his superior officers. Order passed in W.P. (C) No 831/2008 is having no relevancy with the facts of the present case, but learned Single Judge relying upon the order passed in aforementioned WPC i.e. W.P. (C) No. 831/2008 has allowed the writ petition. He further pointed out that learned Single Judge has erred in awarding interest @ 9% p.a., without considering the fact that respondent/petitioner has already accepted all the retiral dues after passing of the order Annexure P-1.
5. Shri Anurag Jha, counsel for the respondent/petitioner would submit that Enquiry Officer has found only charge No. 1 to be proved and rest of the charges i.e. Charges No. 2, 3 & 4 to be not proved and the charge No. 1 is not an allegation but it is only 5 the bundle of acts of respondent which he did while performing his duties. He also pointed out that learned Single Judge has rightly taken note of the order passed by Division Bench in Writ Petition (C) No. 831 of 2008 wherein learned Judges have held that statute 28 is not applicable in case of unaided institutions. Appellant/University without any justifiable cause has passed an order of compulsory retirement. He was arbitrarily and illegally ousted from service and not permitted to do the work, considering this fact, the learned Single Judge has ordered for all consequential benefits including salary along with interest @ 9% per annum. Thus, the impugned order passed by the learned Single Judge is perfectly in accordance with law, which does not call for any interference.
6. We have heard learned counsel for the respective parties and also perused the record of the writ petition as well as writ appeal with utmost circumspection.
7. To appreciate the submissions made by learned counsel for the rival parties, we have perused the order dated 23.07.2008 passed by Division Bench of this Court in W.P. (C) No. 831/2008 and connected matter. The question raised by petitioner therein (St. Vincent Palloti College and others) and while deciding the question, whether statute-28 of College code will apply to minority institutions held that students of the academic year 2007-2008 of St. Vincent Palloti College to be considered afresh 6 in light of the observations made in that order and further that restriction imposed under the Statute-28 of the College Code to be unreasonable. Learned Single Judge considering the aforementioned order dated 23.07.2008 came to the conclusion that the charge, despite ban by the Appellant//University, respondent/petitioner accepted the examination form and examination fee no longer survives and further that charge No. 1 only stated the fact of accepting the examination form and examination fee on behalf of the Appellant/University and depositing the same with the competent authority and does not refer to any conduct making the action of respondent No. 1 to be illegal. The Enquiry Officer has found other three charges not to be proved.
8. Charges levelled against the respondent are extracted below for ready reference :-
"vkjksi Ø- 01% izkpk;Z] lsaV folsaV iSyksVh egkfo|ky;] dkWik] jk;iqj }kjk fnukad 23@11@2007 dks Øe'k% ch-ch-,- izFke lsesLVj] r`rh; lsesLVj ,oa iape lsesLVj ijh{kk QkeZ rFkk ijh{kk 'kqYd :-
95400@& cSadlZ psd uacj 009062] fnukad 20@11@2007 dks ysdj ijh{kk lsesLVj esa fnukad 26@11@2007 dks izLrqr fd;k x;k FkkA vkids }kjk ijh{kk 'kqYd :- 95400@& dk Mh-Mh- tek djus gsrq foRr foHkkx dks laLrqr fd;k x;k Fkk] ftlds vk/kkj ij mDr jkf'k fo-fo- ds jlhn Øekad 2084@14] fnukad 26-11-2007 }kjk fo-fo- esa tek dh xbZ FkhA vkjksi Øekad 02% fo'ofo|ky; ds mi dqylfpo] ijh{kk }kjk tkjh lwpuk Øekad 165@ijh{kk@izos'k@2007 fnukad 13@08@2007 ds vuqlkj 7 vdkneh foHkkx }kjk egkfo|ky;ksa esa l= 2007&08 esa izFke o"kZ esa izfrcaf/kr egkfo|ky;ksa ds ukekadu@ijh{kk vlosnu&i= Hkstus rFkk Lohdkj djus ds iwoZ iwokZuqefr ysus gsrq funsZf'kr fd;k x;k Fkk] ftldh lwpuk lacaf/kr ijh{kk ds dk;Zlgk;dksa dks nh xbZ FkhA ijh{kk vkosnu&i= ijh{kk foHkkx ds vkod fyfid dks tek u dj egkfo|ky; }kjk lh/ks dk;kZy; lgk;d ds ikl tek djk;k x;k gSA vkids }kjk midqylfpo] ijh{kk }kjk tkjh funsZ'k dk ikyu ugha fd;k x;k gS ,oa cxSj iwokZuqefr ds vkosnu lh/ks Lohdkj fd;k x;k gS] tks fd vkids }kjk vius dk;Z esa dh xbZ xaHkhj vfu;ferrk gSA vkjksi Øekad 03% ch-ch-,- izFke lsesLVj esa 46 fu;fer Nk=ksa dk ,oa 25 ,sVhdsVh iwjd izkIr Nk=ksa ds vkosnu&i= vU; ijh{kkvksa ds vkids }kjk Lohdkj fd;k x;k FkkA jksy uacj vkcaVu o izos'k&i= fcuk ukekadu ds egkfo|ky; }kjk rS;kj fd, x,] izos'k i= ij vkids }kjk lh/ks foHkkxh; vf/kdkjh@v?kh{kd dh tkudkjh ds fcuk midqylfpo ds gLrk{kj lhy yxkdj izos'k&i= tkjh fd;k x;k gSA vkjksi Øekad 04% vkids }kjk bl izdkj ds d`R; ls ,slk izrhr gksrk gS fd vkius tkucw>dj foHkkxh; vf/kdkjh dks oLrqfLFkfr dh tkudkjh yk, fcuk egkfo|ky; dks ykHk igqWapkus dk iz;kl fd;k x;k gS ,oa foHkkxh; vf/kdkjh ds gLrk{kj dh lhy dk nq:i;ksx fd;k x;k gSA vkids }kjk mijksDrkuqlkj fd, x, d`R; xaHkhj dnkpj.k dh Js.kh ds varxZr vkrs gSaA vkids bl d`R; ls fo'ofo|ky; dh izfr"Bk dks vk?kkr igqWapk gSA fo'ofo|ky; dh Nfo /kwfey gqbZ gSA"
9. Enquiry report is placed on record along with covering memo by 8 the petitioner in writ petition (at Page No.94). Charges No.2, 3 & 4 are with regard to allegation of acting contrary to the orders and directions, misuse of seal and signature of the officer of the department and committing misconduct. The Enquiry Officer based on the evidence brought on record concluded that Charges No.2, 3 & 4 to be not proved and Charge No.1 to be proved.
The Disciplinary Authority accepted the enquiry report and on the basis of it, passed order Annexure P-1 i.e. of compulsory retirement.
Even if the order passed by the Division Bench in WP No.831/2008 is not to be taken into consideration, as argued by learned counsel for the appellant, it is to be looked into whether on the basis of Charge No.1 stated to be proved is a misconduct and called for punishment when the Enquiry Officer held Charges No.2 to 4 to be not proved and accepted by the Disciplinary Authority.
The Charge No.1 from its bare reading only discloses the acts of the respondent/petitioner while he discharged his duties. Appellant in Para-1.4 of appeal pleaded that the respondent/petitioner was posted in the department of examination, he had charge of BBA exam. Why and how the act of respondent/petitioner comes within the purview of misconduct is shown in Charge No.2, which is held by Enquiry Officer not to 9 be proved. In view of the finding recorded by Enquiry Officer with regard to Charge No.2, 3 & 4, there cannot be any punishment for Charge No.1 as it does not describe any misconduct.
10. In view of the above, we do not find any error in the order of learned Single Judge setting aside the order of punishment of compulsory retirement, granting salary and consequential benefits.
11. This Court is aware of the scope of interference by the High Court in exercise of jurisdiction under Article 226 of the Constitution of India with the finding of Enquiry Officer and the decision of Disciplinary Authority is very limited. The law in this regard is well settled that the Court can interfere only when the decision is illegal or perverse. Hon'ble Supreme Court in case of Allahabad Bank & ors vs. Krishna Narayan Tiwari reported in (2017) 2 SCC 308 has held thus;-
"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine 10 the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non- recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."
12. Coming back to the case at hand, all the charges i.e. Charge 11 No.2, 3 & 4, were not found to be proved but for Charge No.1. Charge No.1 does not mention about the acceptance of examination form of BBA, 1st Semester, 3rd Semester and 5th Semester, acceptance of examination fee of Rs.95,400/- and its deposit with the University to be a misconduct. The Disciplinary Authority passed only three lines order (Annexure P-1). Even there is no discussion for imposing punishment based on enquiry report. In view of the above facts of the case and ruling of Hon'ble Supreme Court in case of Krishna Narayan Tiwari (supra), we do not find any error in the order of learned Single Judge interfering with the order of punishment and setting aside order Annexure P-1.
13. Learned Single Judge has passed an order of all consequential benefits including entire salary from the date of suspension till his rejoining in services. Submissions of learned counsel for the appellant/University is that award of back-wages cannot be automatic but it is to be considered on the basis of the facts of each case. Learned Single Judge has also erred in awarding interest on the salary overlooking the fact that after compulsory retirement, the appellant has already received the retiral dues and respondent/petitioner cannot be given double benefit and also the rate of interest @ 9% per annum. We find it difficult to accept the submission made by learned counsel for the Appellant/University that the award of consequential benefits with back wages is erroneous in the facts and circumstances of 12 the case. It is an erroneous order of appellant which restricted the respondent employee from his working. For the foregoing argument raised, granting back wages and consequential benefit to be erroneous is not sustainable and is hereby repelled.
14. So far as it relates to the award of interest @ 9% per annum is concerned, as per the submission made by learned counsel for the appellant/University the respondent/petitioner has been paid all the retiral dues, for which he is entitled for, hence, interest could not have been awarded. We find some force in the submission made by learned counsel for the appellant/ University, the respondent/petitioner has not disputed in specific terms the submission made by learned counsel for the appellant/University with regard to payment of all retiral dues for which respondent/petitioner was entitled. If this being the position, we are of the view that petitioner/respondent will be entitled for interest @ 9% on salary due from the date of passing of the impugned order dated 15.9.2020 till its realization. We affirm other reliefs granted to respondent in the impugned order.
15. In view of above, appeal is allowed in part and the impugned order is modified to the extent as indicated herein above.
Sd/- Sd/-
(P.R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
Dubey/-