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Judgment
K.G. Shah and N.D. Vyas, JJ.—These two writ petitions are filed by the same petitioner. They involve common questions. Therefore, it will be convenient to dispose them of by this common judgment and they shall accordingly stand disposed of by this common judgment.
The petitioner is a highly qualified person in engineering Science. He obtained a B.E. degree from Gujarat University. Then he passed his M.S.E. [Civil] from the University of Michigan Ann Arbor [Michigan] U.S.A. He secured Ph.D. [Civil] with specialisation in structural Engineering from the Le High University Bethleham. Pa. U.S.A. He first joined the service as Assistant professor in Applied Mechanics Department of S.V. Regional College of Engineering and Technology in Surat, Gujarat. Thereafter on January 30, 1973, he came to be appointed as professor of Structural Engineering in the College of Engineering at Sangli run by Respondent No. 1, and he took the charge of that post on May 31, 1973. He came to be confirmed on that post on July 14, 1976.
In 1976, the Respondents terminated the services of the petitioner. The Petitioner approached the Grievance Committee of Shivaji University, Kolhapur. After inquiry, the Grievance Committee of Shivaji University, Kolhapur ordered Respondent Nos. 1 and 2 to reinstate the Petitioner in services with consequential benefits. It appears that around 1982, one Dr. P.A. Kulkarni was appointed as a Principal of the Engineering College in which the Petitioner was serving. The Petitioner by a Writ petition challenged the appointment of Dr. Kulkarni. However, that writ Petition has been dismissed.
In 1986, a Preliminary Inquiry was held against the Petitioner for it was found that the Petitioner was indulging in acts of misconduct. After preliminary inquiry was held, a regular Departmental Inquiry was commenced against the Petitioner. The Respondents, therefore, by the order dated October 5, 1987, imposed the punishment upon the Petitioner. The punishment was that he shall be reduced to the rank of the Assistant Professor for a period of ten years with effect from the date of the receipt of the order.
The Petitioner challenged the aforesaid order by filing the Appeal before the College Tribunal, Pune. The College Tribunal, Pune partly allowed the Appeal and reduced the period of reduction in rank from 10 years to 3 years. It is against this order by which the Petitioner has come to be reduced in rank to 3 years that he has filed the present Writ Petition No. 3222 of 1988.
For the subsequent period again, the Petitioner had indulged in acts of misconduct. Therefore, another Departmental Inquiry was commenced against him. On the conclusion of the departmental Inquiry, the petitioner was ordered to be dismissed from the service.
The petitioner challenged this dismissal order by filing the Appeal before the College Tribunal, Pune. The College Tribunal, Pune partly allowed the Appeal and set aside the order by which the petitioner had been dismissed from the service. However, the Tribunal while directing the reinstatement of the petitioner to his original post, in modification of the penalty imposed upon the petitioner inflicted the penalty of stoppage of one increment with permanent effect on future increments. The Petitioner has challenged this order in filing the Writ Petition No. 4182 of 1993.
We have heard Mr. Sakhare, the learned Counsel for the petitioner, Mr. Kumbhakoni, the learned Counsel for the Management-Respondent Nos. 1 and 2 and Mrs. Mogare, AGP for the State of Maharashtra, Respondent No. 3.
So far as Writ Petition No, 3222 of 1998 is concerned, the charges which have been held proved against the Petitioner are [1] non maintaining attendance record of the students to submit them to the Principal at the end of each academic term since 1984, [ii] Writing a letter in August 1985 addressed to the Chairman, requesting for No objection Certificate containing baseless and malicious remarks, and [iii] Failure to sign the attendance muster of the teaching staff kept in the common room.
Out of the aforesaid 3 charges held proved by the Inquiry Authority and confirmed by the Tribunal, the factum of the charges in the first and third has been admitted by the Petitioner. He has not only not denied the factum of charges but very much he has admitted that he did not maintain the attendance record of the students. He has also admitted that he did not sign the attendance muster of teaching staff kept in the common room. Of course, so far as remaining charge i.e. writing a letter in August 1985 addressed to the Chaiman, requesting for No Objection Certificate containing baseless and malicious remarks is concerned, he has disputed that charge.
Mr. Sakhare, the learned" counsel-for the Petitioner firstly made a grievance of the fact that when the Petitioner''s appeal in the first matter giving rise to the Writ Petition No. 3222 of 1988 was before the Tribunal, the Petitioner applied for a permission to engage an advocate for the purpose of representing his case and the Tribunal. has illegally turned down that request.
Section 42G of Shivaji University Act, 1974 reads as Follows:
Notwithstanding anything contained in any law for the time being in force, a legal practitioner shall not be entitled to appear on behalf of any party in any proceedings before the Tribunal, except with the special permission of the Tribunal.
Thus it is clear that the party had no vested right of having his case put up through legal practitioner. Normally, the legislative mandate is that the legal practitioner shall not be entitled to appear on behalf of any party in any proceedings before the Tribunal. Of course, the legal practitioner can be permitted to appear before the Tribunal with the special permission of the Tribunal In the present case, the Tribunal has refused the permission to the Petitioner to represent his case through a legal Practitioner and for that the Tribunal has given reasons. The Tribunal has said that no substantial questions of law in this matter were pointed out before it. The Tribunal further said that perhaps the Petition was drafted by an Advocate, and according to it, there was no reason to deviate from the provisions of section 420 of the Shivaji University Act, 1974.
In the facts and circumstances of the case, we are not in a position to fault the approach of the Tribunal. The Petitioner, as indicated hereinabove, is a qualified person. Out of charges held proved, 2 of them he had factually and unequivocally admitted. On these facts, if the Tribunal refused the permission to represent his case by a legal practitioner, the approach of the Tribunal cannot in this Writ Petition be faulted.
Mr. Sakhare nextly submitted that before the First Regular Departmental Inequity was held against the Petitioner, a preliminary inquiry as contemplated by Statute 216 framed u/s 42 (1) of Shivaji University Act, 1974 was commenced against the Petitioner and that inquiry was conducted by the Inquiry Committee Constituted of Dr. P.A. Kulkarni. the Principal. Dr. K.T. Krishnaswamy, and Dr. B. Subha Rao, Dr. Kulkarni and Dr. Krishnaswamy were inimical to the Petitioner, and therefore, Preliminary Inquiry was vitiated, as it has been held by the persons who were inimical to the Petitioner. In the submission of Mr. Sakhare the Preliminary Inquiry was biased. In his submission, therefore, the subsequent starting of Departmental Inquiry itself would stand vitiated. We are not in a position to accept this submission of Mr. Sakhare for the simple reason that the Preliminary Inquiry in general is required to be conducted with a view to finding out the prima facie case before commencing the Regular Departmental Inquiry against the employee. At that stage, normally, the concerned employee has no audience .Such inquiry is not supposed to influence the Regular Departmental Inquiry held later on. Here the Inquiry Officer has not at all allowed his mind to be influenced by the Preliminary Inquiry which had been conducted. In paragraph 6 of his report, the Inquiry Officer has in clear terms stated as thus:
In the first place, I as the Inquiry Officer am not at all giving any importance to the earlier Two Men Committee [It should be three Men Committee] report or the contents of the preliminary inquiry report and I am going to consider all the documentary and oral evidence laid before me objectively without having any prejudice against any of the parties before me. It may be that some of the grievances put forth on behalf of Dr. Parikh contain a grain of truth but I am going to put the Institution and College authorities to strict proof of the charge or charges against Dr. Parikh framed by me.
Thus, the Inquiry Officer has not at all allowed his mind to be influenced by the fact that before regular Departmental Inquiry was commenced, a Preliminary Inquiry was instituted Even apart from the above observations made by the Inquiry Officer, we do not find any thing objectionable in his report. Therefore, even on the assumption that the Principal Mr. Kulkarni and the head of the Department Mr. Krishnaswamy were inimical towards the Petitioner, that fact would be wholly irrelevant for that fact has not at all come in the way of fair inquiry being conducted against the Petitioner.
Mr. Sakhare nextly submitted as that at the inquiry that Petitioner had demanded as many as 14 documents and none of them has been supplied to him. Therefore, in the submission of Mr. Sakhare, the Petitioner has been denied a fair inquiry. We have gone into the list of 14 documents which the Petitioner demanded. The documents at Sr. Nos. 1 to 13 of that list are absolutely irrelevant. They pertain to a period much prior to the period covered by the charges. Those documents even otherwise have no bearing on the charges levelled against the Petitioner. Those documents we are sure could in no manner have assisted the Petitioner in disproving the charges. To take only few out of those 1 to 13documents, the first document demanded by the petitioner is the submission of the then Principal in 1975 resulting into the extension of the Petitioner''s probationary period. Now, in 1975, Mr. Kulkarni was not the Principal and it is not the case of the Petitioner that the person who was the Principal in 1975 bore any grudge against him. Similarly, the document at item No. 2 which the Petitioner demanded are the submissions and the proceedings of the then Principal by which at first the increment of the Petitioner was deferred, and subsequently was released. At item No. 3, he has demanded the copy of the charges levelled against him in 1976. These documents we are sure have no bearing on the inquiry conducted against the Petitioner. At item No. 7, he has demanded the copy of the complaint made by staff members against the then head of the Department in 1979-80. At item No. 12, he has demanded the copy of the complaint received by the College about the teaching staff giving details as mentioned in the complaint. We are more than convinced that the documents at item Nos. 1 to 13, some of which we have referred to hereinabove, are wholly irrelevant. By item No. 14, the Petitioner demanded the circular of timings of the College and signing the muster. The Inquiry Officer clearly indicates in his report that the documents were made available to the Petitioner during the inquiry. Therefore, the grievance of the Petitioner about the non-supply of the documents is wholly misconceived.
Now coming to the charges held proved against the Petitioner and the conduct of the Petitioner, suffice it to say that three charges referred to above have been duly proved. There is no violation of Principal of natural justice. Proper opportunity was given to the Petitioner to defend him-self at the inquiry. Only some of the changes out of the total number of changes have been proved. In a Writ Petition like this, therefore, there is no scope for interference with the findings of misconduct of the Petitioner, as finally approved by the Tribunal.
However, Mr. Sakhare is on a stronger footing on the point of punishment in the first matter. Undisputedly, the Petitioner was directly appointed as Professor in 1974. Respondent No. 1 by its order dated October 5, 1987 reduced the Petitioner to the rank of Assistant Professor for a period of ten years. The Tribunal reduced that period of ten years to the period of three years. Nevertheless the fact remains that the Petitioner was reduced from the post of Professor to the post of Assistant Professor. Admittedly he was directly appointed as a Professor.
Mr. Sakhare drew our attention to the Supreme Court Judgment in Hussain Sasan Saheb Kaladgi Vs. State of Maharashtra, . In that judgment, the Apex Court has clearly posited that a direct recruit to a post, cannot be reverted to lower post. It is only a promotee who can be reverted from the promotion post to the lower post from which he was promoted. The Apex Court says that these propositions are so elementary that the same are incapable of being disputed and had not been disputed before the Apex Court. In the case before the Supreme Court the Appellant was a direct recruit to the post of Assistant Deputy Educational Inspector [A.D.E.I.]. From that post he was reverted to the post of Primary Teacher. On those facts, the Apex Court enunciated the proposition of law in the aforesaid terms. Elsewhere also in that judgment, their Lordships have said that the State had passed an order which clearly was unsustainable in view of the fact that the appellant was direct recruit and there was no question of reverting him to any lower post.
Thus, the Supreme Court judgment posits that a person who has been directly appointed to a post cannot be reverted to a lower post. It is only a person who has been promoted from the lower post to higher post who can be reverted to a lower post. According to Mr. Sakhare, the learned Counsel for the petitioner, admittedly, the Petitioner having been appointed directly to the post of professor, could not, in law, have been reverted to the lower post of Assistant Professor. We think the submission of Mr. Sakhare deserves acceptance.
Mr. Kumbhakoni, the learned Counsel for the Management Respondent Nos. 1 and 2 tried to contend that the Supreme Court judgment, just now referred to, does not anywhere indicate that the reversion of the Appellant before the Supreme Court from the post of Assistant Deputy Educational Inspector [A.D.E.I.] to the post of primary teacher was by way of punishment, and that therefore, that judgment cannot be pressed into service by the Petitioner who has been reverted by way of punishment. We are not in a position to agree with the submission of Mr. Kumbhakoni for, the proposition of law laid down by the Apex Court is clear and that proposition does not say that the direct recruit cannot be reverted to a lower post in cases other than those arising from the departmental inquiry but in cases arising from the departmental inquiry byway of punishment, even a direct recruit to a particular post could be reverted to a lower post. The proposition of law is unambiguous and leaves no room for doubt that in no case a person who has been appointed directly to a post could be reverted to a lower post. That being the position, the submission of Mr. Kumbhakoni should fail.
Respondent Nos. 1 and 2 have reverted the Petitioner to the post of Assistant Professor for a period of 10 years. The Tribunal cut down that period of 10 years to 3 years. Now, in view of the aforesaid Supreme Court Judgment, the Petitioner could not in law have been reverted. If on the Petitioner being found guilty of charges as finally held proved by the Tribunal, some punishment is to be imposed upon the Petitioner, that punishment cannot be of reduction from the post of Professor to the post of Assistant Professor.
Essentially the selection of the punishment, upon the proof of misconduct, is within the domain of the competent authority. In the facts and circumstances of the case before us also we think that while not disturbing the finding of misconduct as approved or confirmed by the Tribunal, the matter shall have to be remanded to Respondent No. 1 for taking appropriate action as may be advised on the question of punishment to be imposed upon the Petitioner, we may make it clear that the Tribunal has held charges 1 and 4 fully proved, while charge No. 3 substantially proved and the charge No. 2 as not proved. Those findings of the Tribunal shall not be disturbed, and upon the finding of mis-conduct of those charges, as recorded by the Tribunal, respondent No. 1, as may be advised in law, shall take appropriate action for choosing the punishment to be inflicted upon the Petitioner. The Writ Petition No. 3222 of 1988 would stand disposed of accordingly with no order as to costs.
Coming to the second petition No. 4182 of 1993, we see no merit in the matter. The facts are almost identical except the fact that the period covered by charges in the second petition is different. The charges held proved are in substance that the Petition did not maintain nor submitted the attendance record of the classes which he had been teaching for the first and second term of the years 1987-88, 1988-89 and the term of the year 1989-90. The second charge held proved is that the petitioner did not sign the attendance muster kept in the staff room for signature of the teaching staff during the period from academic years in 1987-88 till the date of Articles of allegations.
The factual foundations of these charges have been admitted by the Petitioner. He has tried to take up quarrels with the management and has tried to insist that the management should change it rules in the matter of maintaining the muster. He has tried to contend. that the management should keep the muster open for the whole of the day or for substantial part of the day. He has not been able to justify his failure to maintain the attendance record of the students in the classes which he taught and submit it to the Principal. It could not be again said that recording of presence and attendance of the students in an engineering college is of vital importance. Those attendance records would be useful at the end of the academic year when a question whether a particular student should be allowed to keep his terms and be allowed to appear for examination, comes for determination. The Petitioner has dogmatically, for a long period, refused to maintain such records and submit them to the Principal. Equally dogmatically he has persisted in not signing the muster. It appears that the Petitioner has throughout betrayed quarrel some attitude and has tried to raise untenable disputes with the management. Be that as it may, both charges which have been held proved in the second case have been properly proved. There is no case of violation of the principles of natural justice shown to have occurred .We cannot disturb the finding of mis-conduct held proved by the management, and confirmed by the Tribunal. In the present case, though management dismissed the petitioner from the services, the Tribunal has inflicted only the punishment of stopping of one increment with permanent effect. Therefore, on the question of punishment also in the second Writ Petition, there is nothing to be argued in favour of the Petitioner. On the question of punishment, if at all the Tribunal has erred in favour of the petitioner. Unfortunately, the order of the Tribunal reducing the punishment has not been challenged by the management, and therefore, has become final word in that Petition. Hence, the second petition is accordingly dismissed with no order as to costs.
The matter of the first Petition No. 3222 of 1986 is remitted to Respond ent No. l with the directions contained in para 21 hereinabove.