Bombay High Court
Shri Dr. Satchidananda Behera Lecturer ... vs Sant Gadge Baba Amravati University ... on 13 June, 2017
Author: B.P.Dharmadhikari
Bench: B.P.Dharmadhikari, R.B.Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1352 OF 2012
Shri. Dr. Satchidananda Behera,
Aged about - 52 years,
Occ. Service, Sr.Lecturer and
Head, P.G. Department of Physical
Education, Sant Gadge Baba
Amravati University, R/o. 201,
Vimaco Enclaves, Opp. IG Bunglow,
Camp, Amravati ......... .. PETITIONER
// VERSUS //
1 Sant Gadge Baba, Amravati University,
Amravati, Through its Registrar,
having its office at Sant Gadge Baba
Amraati University Campus,
Amravati
2 Registrar,
Sant Gadge Baba,
Amravati University, Amravati
3 Joint Director,
Higher Education,
Amravati Division, Amravati ... RESPONDENTS
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Mr.C.V.Kale, Adv. for the Petitioner.
None for Respondent Nos. 1&2
Mr.A.M.Madiwale, AGP for the Respondent No3.
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CORAM : B.P.DHARMADHIKARI, J.
R.B.DEO, J.
DATE : 13.06.2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J) :
1 Heard Advocate Shri C.V. Kale for petitioner and learned AGP Shri. Madiwale for respondent no. 3. Nobody appears for respondent nos. 1 & 2.
2 Vide order dated 17.2.2007, punishment of witholding next 3 increment permanently and treating period of suspension of 425 days pending inquiry as 'suspension' and therefore, postponing date of next increment accordingly has been questioned by petitioner before this Court. Advocate Shri Kale submits that, as per clause 49 of Ordinance 122 which prescribes punishment, suspension is itself a punishment. Thus, suspension order ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 3 wp1352of12.odt dated 22.12.2005 without holding even a preliminary inquiry and without any opportunity to petitioner is in breach of principles of natural justice and therefore, void. 3 He further adds that as punishment of suspension was already imposed, punishment of witholding next 3 increments permanently is unnecessary and in present facts constitute, double jeopardy.
4 He further submits that composition of Inquiry Committee was bad in as much as upon objection raised by petitioner on 7.4.2016, Smt. Jyoti Deshmukh was removed from Inquiry Committee and substituted by Advocate Shri Mahalle. However, after refusal of Shri Mahale, Smt. Deshmukh was reintroduced and thus, Inquiry Committee as constituted is bad. Hence, all proceedings conducted by it, its report and consequential punishment is also bad. He points out that report submitted by Grievance Committee is not signed by all its members. One Shri S.B. Tidke whose name finds mention on last page, has not signed the report, ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 4 wp1352of12.odt though, there is space left for him to sign. Our attention is drawn to examination of Vice Chancellor by Grievance Committee to urge that while answering question Nos. 3,4,7 & 8, Vice Chancellor communicated that answers to those questions would be given by Registrar, however, Registrar never appeared and, therefore, those questions have remained unanswered. In this situation, when against order of punishment, petitioner has approached a statutory forum under Section 57 of Maharashtra Universities Act, not completing its proceedings as per law by Grievance Committee or then mechanical acceptance of report of Grievance Committee by management council, is again sufficient to vitiate everything.
5 As Smt. Jyoti Deshmukh was having qualification in law, petitioner had sought legal assistance but it was declined arbitrarily and high handedly with the result petitioner could not defend himself effectively. ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 :::
5 wp1352of12.odt 6 Inviting attention to previous Ordinance 122, Chapter 8, Clause 47, Advocate Shri Kale points out that inquiry needed to be completed by Inquiry Committee within six months. As it has not been completed within six months, the proceedings conducted thereafter are all nonest. He submits that after such inquiry, when show cause notice was served upon petitioner by Disciplinary Authority on 8.12.2006, the nature or quantum of punishment proposed was not pointed out and thus it is in breach of principles of natural justice. For all these reasons, Advocate Shri Kale seeks relief of quashing of order of punishment dated 17.2.2007 with all consequential benefits. 7 Learned AGP is relying upon reply affidavit and states that it is basically for respondent nos. 1 and 2 to meet the adverse contentions.
8 Advocate Shri Kale, in reply points out that in its reply before this Court, respondent no. 3 has pointed out erroneously that order of suspension has been passed after ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 6 wp1352of12.odt inquiry. Shri Kale also points out that even inquiry report is not signed by all members of Inquiry Committee. 9 We find that Chapter VIII of Ordinance No. 122 is on punishment. Clause 49 therein vide sub-clause V prescribes suspension as punishment. In Service Jurisprudence, suspension has got three different fassets. Employer can, by exercising his power as a master, refrain employee from working and it is not stigmatic. Similarly, in Service Rules, employer is given power to place employee against whom Departmental Enquiry is being conducted, under suspension. The employee in that case is entitled to substantive allowance as stipulated in such Rules. Last type of suspension is suspension by way of punishment. In present matter, perusal of order dated 22.12.2005 shows that it has been passed in exercise of powers under Section 14(9) of Maharashtra Universities Act,1994 by the Registrar of University. Thus, it is an interim suspension (pending inquiry) and hence, it can not be mistaken with punishment ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 7 wp1352of12.odt of suspension provided for in Ordinance No. 122, clause 49, sub-clause V. 10 Clause 47 of Ordinance 122 stipulates that inqury shall be completed within period of six months from the date of suspension. The argument is inquiry, therefore, can not be continued beyond six months. Similar provisions appearing in Section 78(1)(D) of Bombay Industrial Relation Act, 1946 has been construed by Hon'ble Supreme Court in the case of Municipal Corporation of Greater Bombay Vs. B.E.S.T. Worker's Union reported in 1973 Mh. L.J. 461 holding that it is only a directory provision. Burden has been cast upon employee to show that as inquiry has not been completed within six months, a prejudice has been caused to him. Here, petitioner has only pointed out that inquiry continued beyond six months. No further arguments in this respect are advanced. 11 In so far as absence of signature of all members of Inquiry Committee on Inquiry Report is concerned, our ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 8 wp1352of12.odt attention has been drawn to page 60 of the Memo of Writ Petition. There name of one S. Behara has been written and below his name, his designation has been recorded as Presenting Officer. With the result, he is not part of Inquiry Committee and therefore, he is not supposed to record any findings after appreciating evidence. His role was only to present the case of employer before Enquiry Committee. Smt. Jyoti Deshmukh has signed report in her capacity of member of Inquiry Committee and similarly Dr. Mudliyar has also signed as President of Inquiry Committee. Hence, the submission that Inquiry Report is not signed by all its members, is erroneous. The other contention is about absence of signature of member of Grievance Committee. Again our attention has been drawn to last page of the report. There, names of total 7 members of Grievance committee are mentioned. President of Grievance Committee Shri J.S. Deshpande, its Secretary Shri Dinesh Joshi have signed the report of Grievance Committee. Apart from them, 4 members of Grievance Committee have also placed their signatures. Last member ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 9 wp1352of12.odt or 7th member Shri Tidke does not appear to have signed, though his name finds mention. Thus, 6 out of 7 committee members have already signed said report. Hence, mere absence of signature of Shri Tidke is not fatal and report can not be discarded on that ground. Moreover, the last paragraph of report shows that committee has looked into the report on 30.8.2010 and it was cleared in that meeting. It is not the case of petitioner that Shri Tidke has not participated in that meeting or he has opposed the proceedings or then has supported the case or cause of petitioner.
12 The Grievance Committee has considered grievance made by petitioner against order of punishment. The punishment was inflicted after serving a show cause notice dated 8.12.2006. The petitioner was expressly informed that Disciplinary Authority has gone through report of Inquiry Committee and accepted it. He was thereafter, called upon to show cause as to why a punishment specified under Ordinance 122, Chapter VIII, Clause 49 should not ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 10 wp1352of12.odt be inflicted upon him. After judgment of Hon'ble Apex Court in the case of Union of India & Ors. Vs.Mohd. Ramjan Khan reported in AIR 1991 SC 471 and Constitution Bench in case of Managing Director ECIL Hyderabad Vs. B.Karunakar ect. reported in AIR 1993 SC 1074. It is settled law that employer is not required to give opportunity on quantum of punishment to the employee. As such non-mentioning of a particular punishment in show cause notice, would not in any way, vitiate either the show cause notice or the consequential punishment. 13 After acceptance of Inquiry Report by Disciplinary Authority and on imposition of punishment, proceedings before Grievance Committee under Section 57 of Maharashtra Universities Act are in the shape of departmental appeal.. The members of Grievance Committee in their wisdom brought it fit to put certain questions and obtain clarification from him. This course of action was not open and in any case inability of Vice Chancellor to answer all questions does not further the ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 11 wp1352of12.odt cause of petitioner in any way. The petitioner has not claimed right to cross examine Vice Chancellor at that stage. Answer given by Vice Chancellor are not used to be prejudice of petitioner. Hence, submission that complete material was not disclosed to Grievance Committee by employer is misconceived. Further submission that report of Grievance Committee was mechanically accepted by management council is also therefore, erroneous. No such material allegedly suppressed by employer is brought on record.
14 In so far as role played by Smt. Jyoti Deshmukh as a member of Inquiry Committee is concerned, petitioner has pointed out in his objection that she was only a probationar and 19 years junior in service than him. In such matters, such objections are misconceived. Still, it appears that employer made an effort and substituted her by appointing Advocate Shri Mahalle as member of Inquiry Committee. Shri Mahalle did not accept to act as such and therefore, she was again appointed. It appears from proceedings that ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 12 wp1352of12.odt charges of mis-behaviour, wrong behaviour with students both male and female were levelled against petitioner. The presence of a lady member on Inquiry Committee in the shape of Smt. Deshmukh, therefore, was essential. Not only this, but when a question was asked to Vice Chancellor by Grievance Committee as to why she thought it fit to suspend petitioner pending departmental inquiry, her answer shows that she was moved by the nature of misconduct and thought it proper to put petitioner under suspension.
15 Only presence of undesired member on Inquiry Committee can not in law, vitiate the inquiry proceeding. The scope of jurisdiction available to this Court in such matters and when inquiry can be said to be vitiated is born from judgment of Hon'ble Apex Court in the case of State Bank of Patiyala & Ors. Vs. S.K. Sharma, 1996(3)SCC page
364. Present petitioner has to point out not only violation of statutory provisions but also accompanying prejudice resulting therefrom in this matter. Here, petitioner has only ::: Uploaded on - 22/06/2017 ::: Downloaded on - 28/08/2017 05:59:07 ::: 13 wp1352of12.odt made half hearted efforts to demonstrate some violation which has not resulted in any prejudice to him and also do not go to the root of matter. As already held Supra, as suspension was pending Departmental Enquiry and not a punishment, argument of double jeopardy is erroneous and misconceived. Petitioners next 3 increments have been witheld permanently and date of next increment has been postponed as period of suspension pending inquiry has been regularized as suspension only. Nothing wrong has been demonstrated with this treatment accorded to period of suspension.
We therefore, find no case made out warranting interference in extra-ordinary jurisdiction. Accordingly, writ petition is dismissed. Rule discharged. No costs.
JUDGE JUDGE
belkhede, PA
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