Bombay High Court
Prahladrai Dalmia Lions College Of ... vs A.M. Rangaparia And Ors. on 17 March, 1988
Equivalent citations: 1988(3)BOMCR564
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT S.P. Kurdukar, J.
1. These two writ petitions filed under Article 226 of the Constitution of India were heard together and they can be disposed of by this common judgment. They arise out of an award/order passed by the Presiding Officer, College Tribunal, Bombay, in Appeal No. 1 of 1985 field by Shri A.N. Rangparia, Professor of P.D. Lions College of Commerce and Economics, Malad---hereinafter referred to as 'the said College", challenging the legality and correctness of termination of his service vide letter dated 15th November, 1985 issued by the Authority of the said College.
2. Writ Petition No. 3129 of 1986 is filed by the 5 petitioners against Shri A.N. Rangparia, Professor of P.D. Lions College, who is respondent No. 1. The petitioners are (1) Prahladrai Dalmia lions College of Commerce and Economics; (2) Principal of the said college; (3) Chairman of the Governing Council of the said College; (4) Secretary of the Governing Council of the said college; (5) Trustees of Lion's Club of Malad-Borivil-College Charity Trust and Members of the Governing Council of the said college. The petitioner are hereinafter referred to as "the employer." respondent No. 1 is hereinafter referred to as 'an employee.'
3. Writ Petition No. 159 of 1987 is filed by Shri A.N. Rangparia, the Professor of the said College against the five petitioners in Writ Petition No. 3129 of 1986. The sixth respondent is the Presiding Officer of the College Tribunal. For the sake of convenience I will refer to the documents complied in Writ Petition No. 3129 of 1986.
4. Briefly stated the facts are as follows :
The first petitioner College is run by the Broad of Trustees Lions Club of Malad-Borivli Charity Trust. The affairs of the 1st petitioner College are managed by the Governing Council consisting of 17 members which include the Principal of the college (the 2nd petitioner) and petitioners, No. 3 and 4. This College came to be established sometime in the year 1972. The 1st respondent---Prof. A.M. Rangaparia came to be appointed to the post of Lecturer in Commerce in March 1972 in senior grade. In the year 1974 he was appointed as a Professor-in-charge of morning classes for which he was paid an allowance of Rs. 100/- per month. Until the date of termination of his services he was working as a Professor-in-charge of the morning classes. The services of the 1st respondent employee came to be terminated vide letter dated 15th November, 1985 with immediate effect. This letter has been signed by the principal of the college and the Hon. Secretary of the Governing Council of the said college.
5. In the meeting of the Governing Council of the college held on 24th May, 1982, the conduct of the employee in discharge of his duties and all matters pertaining thereof were considered. The Governing Council disapproved the conduct of the employee in discharge of his duties and thereupon decided that a suitable action be taken against the employee including that of termination of his services if thought fit and advised. In the same meeting it was resolved that a charge-sheet be served upon the employee together with the statement of allegations on which each charge is based. Accordingly on 30th January, 1982 a letter was addressed to the employee communicating the decision of the Governing Council and also incorporating the various charges. The letter further called upon the employee to put in his written statement in details if he so desires within a period of 14 days of the receipt of the said letter. The letter further states that after hearing from the employee the management if so directs may hold an enquiry in regard to the various charges. All these facts are no more in dispute.
6. In the view which I am taking in both the writ petitions, it is needless to summarise the detailed particulars of the charges contained in the letter/charge-sheet dated 30th January, 1982 (Exh. F.). Briefly stated the charges are as under :
(i) Persistent negligence as a Professor-in-charge of morning classes;
(ii) Incorrect reporting about the other Professors;
(iii) Failure to attend morning classes regularly at 6.30 a.m.
(iv) Disobeying instruction of Superiors and indulging in acts of insubordination;
(v) Writing undecorous and defamatory letters to the Principal.
7. At this stage it may be stated that the charges contained in the charge sheet cover the period between February 1975 and January, 1982.
8. The employee filed his detailed reply to the said charge-sheet and forwarded the same by his letter dated 27th February, 1982. The copy of the reply is annexed to the petition and marked as Exh. G. In substance the employee denied all the charges and stated that no misconduct whatsoever has been committed by him. The charges are tainted with malice and frivolous and no enquiry whatsoever deserves to be undertaken.
9. The Managing Committee of the College found the explanation of the employee unsatisfactory and consequently decided to hold an enquiry. The Managing Committee accordingly informed the employee of this decision to hold an enquiry vide its letter dated 6th May, 1982. (Exh. H.)
10. Initially Shri S.D. Balsara was appointed as the Enquiry Officer who held the enquiry for some time. But thereafter he resigned and consequently Shri J.E. Dholakia conducted the enquiry. While the enquiry was in progress, the college received a letter from the University dated 27th August, 1983 and pursuant thereto the management decided to drop certain charges. The enquiry proceeded against the employee in respect of rest of the charges before Shri J.E. Dholakia. The Management as well as the employee led oral and documentary evidence in support of their rival contentions. The Enquiry Officer held the employee guilty of the following charges.
"a) The 1st respondent made a false report against Professor S.P. Joshi regarding holding classes late on 22nd December, 1980 and thus abused his position as Professor-in-charge of morning classes.
b) The report of the 1st respondent about Professor Bhise was deliberate and gives a wrong opinion and endangers relations between brother colleagues.
(c) Remaining absent in spite of written instructions of the Principal to that effect on 18th December, 1981 and thus, deliberately disobeying the orders of the Principal.
(d) Making false statements before the principal and remaining present before the College Tribunal in the guise of attending University matters.
(e) Writing undecorous and defamatory letters."
11. The report and the findings of the Enquiry Officer then came to considered in the meeting of the Governing Council of the college and the Governing Council after deliberations agreed with the findings of the Enquiry Officer. Consequently the Governing Council resolved to issue a show cause notice to the employee as to why he should not be removed from the service. The Show Cause notice was served on the employee on 10th October, 1985 (Exh. J.). The employee submitted his reply to the show cause notice. A copy of the said reply dated 1st November, 1985 is annexed to the petition and marked as Exh. K. The Governing Council again held its meeting on 14th November, 1985 and after considering the reply of the employee in the same meeting decided to remove the employee from service. The Governing Council authorised the principal of the college to issue a letter of termination. The Principal vide his letter dated 15th November, 1985 informed the employee that he is removed from the service of the college with immediate effect.
12. Aggrieved by this order of termination of service, the employee filed an appeal to the College Tribunal under section 42-B(1) of the Bombay University Act, 1974-hereinafter referred to as "the Act". The employee challenged his termination on various grounds. One of the most vital grounds is that the enquiry held against him was not fair and proper and the order of termination was issued by way of victimization. Along with this appeal memo the employee filed an application for interim relief praying for stay of the operation of the impugned order. The College Tribunal vide its order dated 9th December, 1985 stayed the operation of the termination order if the same was not implemented. The petitioner-employers filed their reply opposing the grant of interim relief and/or vacating the stay order. The College Tribunal after hearing both the sides vide its order dated 20th February, 1986 directed the employers to pay subsistence allowance to the employee as if the order of termination is of no effect. The copy of the said order is annexed to the petition and marked as Exh. R.
13. The petitioner-employers filed their written statement before the College Tribunal and sought to justify the order of termination. The 2nd respondent after hearing the arguments of both the parties and after perusing the record vide his order dated 3rd September, 1986 although concurred with the findings of the enquiry officer but differed as regards the quantum of punishment. The 2nd respondent found the punishment disproportionate and accordingly modified the order of termination and directed the employers to reinstate the employee. The second respondent however by way of punishment ordered stoppage of two increment for two years. A copy of the said order is annexed to this petition and marked as Exh. T.
14. It is this order which is the subject matter of challenge in these two writ petitions. The petitioners-employers have filed Writ Petition No. 3129 of 1986 challenging the legality and correctness of order of punishment and further praying that order of termination be confirmed. The employee has filed Writ Petition No. 159 of 1987 challenging the legality and correctness of the entire award/order including punishment. The employee prayed that he be honourably exonerated from all these charges.
15. At this stage I may briefly summarise the findings of the College Tribunal. The College Tribunal held that the enquiry was fair and proper. As far as the charges of misconduct are concerned, the same are discussed in detail in his finding on issue No. 12. This issue was sub-divided into 12(1) to 12(6). He held that the charges of misconduct save and except Item 12(5) are proved. He accordingly held the employee guilty of misconduct as regards remaining charges. In regard to the punishment the learned Presiding Officer of the Tribunal held that considering the misconduct and having regard to the long service of the employee, the punishment inflicted upon the employee was too harsh and consequently set aside the punishment of termination of service of the employee and instead directed that the employee's two increments for two years be withheld .
16. The learned Counsel appearing for the respective parties argued the matter extensively and took me through various relevant documents on record. Before I deal with the contentions raised by Shri Kapadia, learned Counsel appearing in support of the writ petition filed by the employers I deem it necessary to consider a very basic contention raised on behalf of the employee by Shri S.J. Deshmukh. Shri Deshmukh urged that entire enquiry was unfair and unjust and proceeded despite employee's objections in utter violation of principles of natural justice. He also branded the decision of the Governing Council terminating the employee's services as mala fide, unjust and unfair. To substantiate this contention Shri Deshmukh urged that three persons viz. Mr. Banwarilal Jhunjhunwala, Mr. Rajan J. Shah (Chairman of the Governing Council) and Mrs. P.S. Baleri, Principal of the college acted as prosecutors, witnesses and also Judges. According to the learned Counsel these three persons were the star witnesses on behalf of the employers. They were present throughout the proceedings before of enquiry officer when the evidence of one of them was being recorded. Shri Jhunjhunwala and Shri R.J. Shah acted as prosecutors throughout the proceedings and also cross-examined the witnesses of the employee. The employee vide his application dated 5th August, 1982 (Exh. B.) objected to the presence of these three witnesses at the time of recording of the evidence. Despite this objection the enquiry officer did not take any action and allowed the proceedings to continue in their presence, Mr. Deshmukh therefore urged that enquiry be held as unfair, unjust and in violation of principles of natural justice. He also drew my attention to the judgment of this Court (D.B.) in K.R. Nandan v. Fluid Power (P) Ltd., 1987(55) F.L.R. 821 and in particular para (d) which reads as under :---
"......the Administrative Officer Barve who represented the first respondent at the domestic enquiry and acted as a prosecutor, himself gave evidence in the enquiry proceeding and the enquiry Officer merrily recorded his statements and made use thereof to hold the petitioner guilty of the charges levelled against him. The involvement of Barve in this manner at the enquiry blatantly violated the principles of natural justice."
These observations aptly apply to the present case. I accordingly hold that the enquiry was unfair, unjust and in the total violation of principles of natural justice. A specific ground is also taken by the employee in his writ petition (see ground No. 20).
Coming to the second limb of contention in this behalf that these persons also acted as Judges of their own cause, which vitiates the order of termination. Mr. Deshmukh strongly relied upon the latest judgement of the Supreme Court in Arjun Chaubay v. Union of India and others, . The relevant observations are as under :---
"The main thrust of the charges against the appellant related to his conduct qua respondent No. 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry."
Mr. Deshmukh also drew my attention to the employee's application dated 17th December, 1985 made to the College Tribunal seeking a direction to the employers to furnish certain documents which included minutes of the meeting of the Governing Council held on 1-10-1985 and 14-11-1985. No order was ever passed. Emphasis of Mr. Deshmukh is that these three persons as members of the Governing Council attended the meeting held on 14-11-1985 were in the decision to terminate the services often employee was taken. These three persons therefore acted as judges of their own cause which has vitiated the order of termination.
17. During the course of hearing I asked Shri Kapadia to verify as to whether these three persons attended the meetings of the Governing Council in particular the meetings held on 14-11-1985, Shri Kapadia with his habitual fairness could not dispute the presence of these three persons at the said meeting. He however urged that Governing Council is consisted of 17 members and impugned order of termination is almost an unanimous decision. Assuming that these three persons were present in the meeting dated 14-11-1985, the decision remains unaffected. On these facts Mr. Kapadia sought to distinguish the above referred decision of the Supreme Court. This contention has been dealt with by the College Tribunal in para 14. In the opinion this issue involves investigation of several factual aspects and it would not be proper to conclude one way or the other on the basis of affidavits. Opportunity will have to be given to both parties to prove the correctness of this allegation. In theses circumstances I do not think it proper to set aside the order of termination at this stage. It would be open to the College Tribunal to consider and examine this contention on merits with reference to the above observations of the Supreme Court and record its findings.
18. Shri Deshmukh also relied upon the following decision. I may only make a reference to these authorities. (1) A.K. Kraipak and others v. Union of India and others, ; Kumar Ram Nandan v. M/s. Fluid Power (P) Ltd., 1987(55) F.L.R. 821.
19. So far as participation of these three persons as prosecutors and witnesses is concerned, I find that submission of Shri Deshmukh deserves to be accepted. The manner in which enquiry was proceeded could hardly be called fair and just.
20. Having held that the enquiry was unjust and unfair, the next important question that needs to be considered in both these writ petitions is as to whether the employee should be reinstated straightway or the proceedings need to be remitted back to the College Tribunal to hold an enquiry in regard to the misconduct of the employee. Shri Deshmukh appearing for the employee urged that once this Court has reached a conclusion that enquiry was unfair, and unjust ordinary rule of reinstatement with back wages must follow and no exception be made. Opposed to this contention Mr. Kapadia urged that having regard to the misconduct and in particular the undecorous and defamatory letter addressed to the principal, employer be given an opportunity to prove the misconduct before an independent Tribunal. This course is ordinarily followed in such matters under the Industrial Disputes Act. He then urged that sections 42-A to 42-E of the Act in substance are pari materia with section 11-A of the Industrial Disputes Act, 1947. The employers in their writ petition have prayed for such opportunity and therefore this Court would be quite competent and justified in remitting the matter back to the College Tribunal.
21. In order to determine this vital question it would be necessary to refer to some of the provisions of the Act. The object of the Act as set out in the preamble, inter alia, is, "to provide more efficient administration and financial control, and better organisation of teaching and research; to ensure faithful observance of the law in all matters, including the selection and appointment of teachers and other employees".
22. Bearing in mind this object, I may turn to the provisions of Chapter VI which deal with conditions of service of employee in colleges and recognised Institutions.
23. Section 42 deals with powers of the Senate to make statues prescribing conditions of service of employee in colleges and recognised institutions.
Section 42-A deals with constitution of College Tribunals for adjudication of certain disputes or differences between employees and Management in private affiliated colleges and recognised institutions.
Section 42-B deals with right of appeal to Tribunal to employees of private affiliated colleges or recognised institutions in certain cases. The relevant provision is section 42-B(1) which reads as under :---
"42-B(1). Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a teacher or other employee) in any affiliated college or Recognised Institution (other than that managed and maintained by the State Government or the University) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the Management and who is aggrieved, shall have a right of appeal and any appeal against such order to the Tribunal constituted under section 42-A :
Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court or Tribunal of competent jurisdiction or is pending before such Court or Tribunal on the date of commencement of the Maharashtra Universities (Second Amendment) Act, 1977, or where the order of dismissal, removal, or otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st day of July, 1974".
The provision confers a right on employee to file an appeal who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the Management and who is aggrieved by such order.
Section 42-C deals with general powers and procedure of Tribunal. Much controversy centres around this provision. I may therefore reproduce the same :
"42-C(1). For the purposes of admission, hearing and disposal of appeals the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers are conferred on it by or under this Act.
(2) The Presiding Officer of the Tribunal shall decide the procedure to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sittings.
(3) Every appeal shall be decided as expeditiously as possible. In every case, endeavour shall be made by the Tribunal to decide an appeal within three months from the date on which it is received by the Tribunal. If the Tribunal is unable to dispose of any appeal within this period, it shall put on its record the reasons therefore".
Section 42-D deals with power of Tribunal to give appropriate reliefs and directions. This section 42-D is also equally relevant in the present proceedings and I may therefore reproduce the same :
"42-D(1). On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 42-B or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management, it may dismiss the appeal.
(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law, contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the management---
(a) to reinstate the employee on the same or on a lower post as it may specify;
(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;
(c) to give arrears of emoluments to the employee for such period as it may specify;
(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;
(e) where it is decided not to reinstate the employee or in any other appropriate case, to give such sum to the employee, not exceeding his emoluments for six months, by way o compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or
(f) To give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.
(3) It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to the employee may be deducted from the grant payable to the Management and be paid to the employee direct.
(4) Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than two months from the date of its receipt by the Management".
Section 42-E gives finality to the decision of the Tribunal.
Section 42-F deals with penalty to Management for failure to comply with Tribunal's directions.
We are no much concerned with sections 42-E and 42-F and therefore it is not necessary to reproduce the same.
24. Reverting back to section 42-A it is clear that the College Tribunals are constituted for adjudication of disputes or differences between the employees and the management of any affiliated college or recognised institution. Plain reading of this section indicates that the Tribunal has been vested with the jurisdiction and empowered to adjudicate upon the disputes or difference between the employees and the Management. It is no more is dispute in the present writ petitions that there is dispute as regards the termination. Order passed by the Management against the employee and this order of termination was the subject matter of adjudication before the College Tribunal.
25. Shri Deshmukh, learned Counsel urged that the College Tribunal is vested with the same powers as are given to the Appellate Court under the Code of Civil Procedure, 1908. The College Tribunal according to the learned Counsel has no powers of trial Court and, therefore, remitting the proceedings back to the College Tribunal to adjudicate upon the dispute between the employers and the employee would be contrary to section 42-C of the Act. In effect the argument is that if the matter is sent back to the College Tribunal it will amount to equating such Tribunal to a trial Court and this could not be the object in enacting section 42-C of the Act. He also urged that if the proceedings are remitted back to the College Tribunal with a direction to start a denovo enquiry and record the evidence of the witnesses it will virtually amount to re-writing section 42-C and substituting the word 'an appellate Court' by 'trial Court'. He fairly conceded that Appellate Court in a given case may have a jurisdiction to record evidence. The Tribunal in question which is an Appellate Court may have a power to recast the issues if they are not properly framed by the enquiry officer and/or to record additional evidence if it is found necessary to decide the issues before it. He also brought to my notice circumstances under which such power can be exercised by the Appellate Court as provided under Order XLI, Rules 23 and 27 of the Civil Procedure Code. He then urged that none of the circumstances exist in the present case and therefore the proceedings cannot be remitted back to the Tribunal. If this Court is satisfied that the enquiry held by the Enquiry Officer was unjust and unfair, then only course open to this Court is to set aside such inquiry and findings as well as the order of termination and leave the parties to adopt such course as may be permissible in law. Mr. Deshmukh therefore strongly opposed the contention raised by Mr. Kapadia that the proceedings be remitted back to the College Tribunal for further enquiry. Mr. Deshmukh also urged that if the Legislature intended to empower the College Tribunal to exercise the power of trial Court then it would have provided so in the section itself. There is nothing in the section indicating that the Tribunal can exercise the powers of a trial Court. It would therefore be impermissible for this Court to remit the proceedings back to the College Tribunal with a direction to hold further enquiry into the charges. He also urged that analogy of section 11-A of the Industrial Disputes Act cannot be pressed into service nor section 42-C be said to be pari materia with the said provision. Learned Counsel fairly conceded that section 11-A of the Industrial Disputes Act also does not make any reference to the powers of the Industrial or Tribunal to record the evidence after coming to the conclusion that the enquiry held by the Enquiry Officer was unjust and unfair. He however does not dispute the judicial pronouncements of the Supreme Court as well as of the High Courts recognising such power and/or course being followed by the Industrial Court or Tribunal under section 11-A of the Industrial Disputes Act. It is therefore needless to refer to various authorities on this topic.
26. The important question that falls for my consideration is as to what are the powers of the Tribunal under section 42-C of the Act. This section has to be read in conjunction with section 42-D of the Act. Section 42-D as set out earlier empowers the Tribunal after giving reasonable opportunity to both parties of being heard to decide in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law, contract or conditions of service for the time being in force or was otherwise illegal or improper, it (the Tribunal) may set aside the order of the Management partially or wholly, and direct the Management as provided in section 42-D(2).
27. While interpreting the scope of section 42-C and 42-D, one cannot be unmindful of the several situations which led to the passing of the variety of orders including the order of dismissal, removal etc. It would be too bold a proposition to lay down that every order of dismissal, removal etc., must precede an enquiry. Take a case where an employee is appointed for a fixed period. After expiry of the said period the services automatically come to an end and the Management need not necessarily hold and enquiry. Take another case where a contract of service provide that no employee shall not remain absent at any point time. The employee remains absent and consequently an order of termination is made. Consistent with the contract order of termination may appear to be void and no enquiry whatsoever on these admitted facts may be necessary and may not be held. It must therefore follow that every order of dismissal, removal etc. need not to be preceded by an enquiry. It can be a simpliciter termination without any enquiry yet such an order can be challenged by way of an appeal to the Tribunal . Taking into account the various situations and in view of the wide powers conferred upon the Tribunal in my opinion the appeal filed against an order passed by the management is nothing but a plaint challenging the order on various grounds. Merely because in section 42-C the legislature has termed the College Tribunal as an Appellate Court it cannot be strictly construed to mean that it has no powers to record evidence. The nomenclature would not be a decisive factor in determining the jurisdiction and the powers of the Tribunal. It has used the expression Tribunal equivalent to an Appellate Court because there is always an order of Management which is sought to be challenged before the College Tribunal and, therefore, it is in that sense "An Appellate Court". The College Tribunal is also given power to go into the question of legality and correctness of the impugned order including to decide as to whether the order is illegal or improper. The Tribunal is also empowered to set aside the order of management partially or wholly and issue directions to the management accordingly. The words 'illegal and improper' used in sub-section (2) of section 42-D are indicative of the fact that the College Tribunal can also find out as to whether the impugned order is illegal or improper. The phrase, 'impropriety' covers a larger area which includes in my opinion non-observance of the principles of natural justice. The Tribunal is also empowered to direct the management to reinstate the employee on the same and or lower post as it may specify. It may also direct the Management to restore the employee to the rank which he held before reduction or to any lower rank as it may specify. The Tribunal can also direct to give arrears of emoluments to the employee. The Tribunal can also impose a lesser punishment in lieu of dismissal, removal etc. The Tribunal is also empowered to direct that in case if it is decided not to reinstate the employee or in any other appropriate case, to give such sum to the employee, by way of compensation but not exceeding his emoluments for six months section 42-D if considered in its proper perspective to my mind it leaves no manner of doubt that College Tribunal has got jurisdiction to try all issues and to adjudicate upon the dispute between the Management and the employee including power to record evidence. If the argument of Mr. Deshmukh is accepted it will amount to giving too narrow jurisdiction to the College Tribunal and this would result into multiplicity of proceedings. In a case where the enquiry fails because of non-observance of the principles of natural justice, it does not mean that the employee has not committed any misconduct and it may still be open to the management to hold an enquiry on the same charges of misconduct. Does it not amount to multiplicity of proceedings? Would not it cause greater hardship to the employee? It would also result in waste of time and money on both times. In order to obviate this difficulty in my opinion, the only proper interpretation of section 42-C would be that the College Tribunal will have a jurisdiction to hold further enquiry if it comes to the conclusion that the enquiry held by the Enquiry Officer is vitiated on the ground of non observance of principles of natural justice. The object of enactment as stated earlier is to adjudicate and resolve the dispute between the Management and the Employee and as indicated in section 42-C(3) to dispose of such appeals within three months from the date of its receipt by the Tribunal. The object indicated in this section needs no further comments.
28. Shri Kapadia, learned Counsel drew my attention to section 42-D of the Act and section 11-A of the Industrial Disputes Act. The attempt of the learned Counsel is to suggest that even under section 11-A of the Industrial Disputes Act, there is no reference whatsoever as to what procedure and/ or steps should be taken in the event if the enquiry is found vitiated on the ground of non-observance of the principles of natural justice. He heavily relied upon various judgments of the Supreme Court as well as of this Court which have time and again reiterated that in the event if the Industrial Court or Tribunal comes to the conclusion that the enquiry is vitiated because of non-observance of the principles of natural justice and if the employer at the earliest stage seeks an opportunity to lead evidence to justify his order, the Tribunal will not preclude him from adducing such evidence. The object is that an independent Tribunal is made available to the disputants to prove and disprove their rival contentions. In my opinion, to accept the argument of Mr. Deshmukh would virtually lead to a narrow interpretation of sections 42-C and 42-D of the Act and in a given case it would cause a great hardship to the employee.
29. Shri Deshmukh taking exception to the course adopted by me urged that this Court comes to the conclusion that the domestic enquiry was defective the petitioners-employers should not be given an opportunity to file in the lacuna in the proceedings by permitting them to lead a fresh evidence before the College Tribunal. If the petitioners-employers want to hold a fresh inquiry they may do so at their risk. While supplementing this argument Shri Deshmukh tries to draw support form the judgment of the Supreme Court in the case of Workmen of M/s. Firestone Tyre and Rubber Co. v. The Management and others, . In particular he drew my attention to paragraph 33 of the said judgment. I have gone through paragraph 33 and I am unable to reach a conclusion as desired by Shri Deshmukh. In fact the Supreme Court reiterates the law laid down in the past namely if the Industrial Tribunal or the Court comes to the conclusion that domestic enquiry was defective the Tribunal will have to give an opportunity to the Management to lead further evidence as they deem fit to justify its action. This judgment in my opinion does not take the case of the employee any further to suggest that the course adopted by me is not permissible.
30. It is also necessary to state that the College Tribunal proceeded on the footing that it has got a limited jurisdiction in dealing with such appeals and it cannot interfere with the findings of the Enquiry Officer unless they are found perverse. At several places in the judgment the Presiding Officer of the Tribunal has concluded that the findings of the Enquiry Officer cannot be termed as perverse. In fairness I must say that the Tribunal has also considered the evidence on record but the same has been considered in a limited manner to find out as to whether the findings recorded by Enquiry Officer were perverse or otherwise. This approach, in my opinion, is wholly unsustainable. As indicated above, it is a statutory Tribunal constituted under section 42-A of the Act and is vested with all necessary powers to adjudicate upon the disputes or differences between the employees and the Management. Section 42-C of the Act deals with general power and procedure of Tribunal. Right of appeal to the College Tribunal being statutory one, it must necessarily, follow that it has got all powers to reappraise, the material on record and come to its own findings. The Tribunal exercises all powers of an Appellate Court under Order XLI of the Code of Civil Procedure including framing of additional issues and recording additional evidence. If that be so, in my opinion, the Tribunal could not have reappraised the evidence in a limited manner to find out as to whether the findings of the Enquiry Officer were perverse or otherwise. The Tribunal has to reappreciate the entire material on record and come to its own conclusion independently and if necessary in the interest of justice record the evidence.
31. Shi Kapadia, learned Counsel for the employers brought to my notice the judgment of the Division Bench of this Court in batch of the petitions which were numbered as Civil References (No. 4 of 1984 etc.) Mr. Krishna Chandra Sharma v. Sind Hyderabad National Collegiate Board and others. In these reference cases the constitutional validity of the Act was challenged by the minority institutions on various grounds. The Division Bench has extensively considered the various provisions and the scheme of the Act including sections 42-B to 42-E. It is true that the question that was posed before me was not directly fell or consideration before the Division Bench but while considering the scope of section 42-D, the Division Bench has observed as follows :
"12. The last attack was against the provisions of sub-section 42-D(2) to (4) which give powers to the Tribunal to give reliefs of various kinds to the employee whose dismissal, removal, termination of service or reduction in rank is held to be wrongful and also to give consequent directions to the management. It is contended that this provision is directly inconsistent with Article 30(1). In this connection it is also urged that the power given to the Tribunal to hear the appeal not only on law but also on facts and to set aside the management's order even on the ground of impropriety is wide enough to constitute an encroachment on the fundamental right of management. It is particularly with respect to this aspect of the Tribunal's power that a heavy reliance is placed on paragraphs 15, 37, 52 and 53 of the Supreme Court's judgement in Lily Kurian v. Sr. Lewina And Others , and on paragraph 16 of the judgment Chandrachud, C.J., in the case of (All Saints High School), .
The attack ignores certain obvious facts. The powers of a Court of appeal under the Code of Civil Procedure, 1908 under section 107 read with Order XLI are wide enough an the power not only to annul or set aside the order appealed against but also to vary or modify it. The Appellate Court may also reframe issues or frame new issues or either remand the matter or take fresh or additional evidence itself. The Court has further power not only to go into the question of law but also of fact and to reappreciate the evidence on record and to substitute its finding of fact as well as its order. What is more, the grounds on which the Appellate Court can interfere include the impropriety of the order impugned. Thus once the Tribunal is vested with the powers of the Court of appeal under the Civil Procedure Code, the powers enumerated in section 42-D(2) are implicit whether they are separately enumerated or not. Even without their detailed specifications in the said provision they could have been assumed. Section 42-C(i) confers the said powers on the Tribunal even otherwise."
These above referred observations fairly and squarely support my conclusion as regard the interpretation of section 42-D of the Act. I am also equally convinced that analogy of section 11-A of the Industrial Disputes Act could be invoked to substantiate interpretation of section 42-D of the Act. The only distinction sought to be drawn by Shri Deshmukh is that under Industrial Disputes Act the proceedings arise out of reference and, therefore, reference cannot be equated with an appeal. As indicated earlier nomenclature is not the only decisive factor but the object of the provision will have to be considered. As far as the appeal before the College Tribunal is concerned I have already come to the conclusion that the appeal before the Tribunal is nothing but a plaint by the aggrieved party challenging the order passed by the domestic Tribunal.
32. Thus having regard to the above findings, as regards the domestic enquiry I am of the opinion that the matter must go back to the College Tribunal. The College Tribunal will allow the employers to lead the evidence in support of the various charges of misconduct framed against the employee who will also have an opportunity to lead evidence in rebuttal. The College Tribunal thereafter will pass appropriate orders in accordance with law.
33. Now remains the question as to what interim relief during the pendency of the appeal before the Tribunal should be granted to the employee. The College Tribunal vide its order dated 20-2-1986 after hearing both sides directed the employers to pay subsistence allowance to the employee and this order is although a subject matter of challenge in this writ petition but continued until disposal of the appeal. In the interest of justice and to minimise the hardship to both the parties in my opinion this interim order dated 20-2-1986 must continue pending the disposal of the appeal before the College Tribunal. Accordingly the petitioners- employers are directed to deposit all the arrears if any upto the end of February 1988 in the College Tribunal at the same rate as directed by the Tribunal vide its order dated 20-2-1986. The subsistence allowance of March 1988 and thereafter shall be deposited in the College Tribunal in the next succeeding month on or before 10th of the each succeeding month. The employee is at liberty to withdraw the arrears of subsistence allowance upon giving surery /or furnishing bank guarantee to the satisfaction of the College Tribunal. The College Tribunal is also directed to dispose of the appeal as expeditiously as possible.
34. In the result, the impugned order dated 31st August, 1985 passed by the College Tribunal is quashed and set aside and the matter is remitted back to the College Tribunal for disposal in accordance with law in the light of the observations made hereinabove. Rule in both the petitions is accordingly made partly absolute as indicated above. In the circumstances of the case, petitioners in both the petitions are directed to bear their own costs.