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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2224 OF 1995
Jaiwant s/o Bapurao Khadse,
aged 37 years, occupation -
Presently Nil, c/o Santosh Mote,
Deshmukh File, Akola,
Tq. & District - Akola. ... PETITIONER
Versus
1. The Secretary,
Shri Shivaji Education Society,
Shivaji Nagar, Amravati.
2. The Principal (Incharge),
College of Engineering &
Technology, Near Shivaji Park,
Akola, Tq. & District - Akola.
3. Professor C.V. Deshmukh,
Professor Incharge Examination,
H.O.D. Production Department,
College of Engineering and
Technology, Akola.
4. Shri S.K. Patil, Lecturer,
Assistant to Respondent No.3,
Production Department,
College of Engineering and
Technology, Akola.
5. Shri V.T. Bhugul, Lecturer in
Chemistry, Conductor for
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Examination, College of
Engineering and Technology,
Akola.
6. Shri N.D. Kakkad,
Junior Clerk, College of
Engineering and Technology,
Akola.
7. The College Tribunal,
Aurangabad, represented by
the Presiding Officer,
Aurangabad. ... RESPONDENTS
Shri N.R. Saboo, Advocate for the petitioner.
Shri C.S. Kaptan, Advocate for respondents No.1 & 2.
Shri Anoop Parihar, AGP for respondent No. 7.
.....
CORAM : B.P. DHARMADHIKARI, J.
SEPTEMBER 26, 2008.
ORAL JUDGMENT :
By this writ petition filed under Articles 226 and 227 of
Constitution of India, the petitioner, a Clerk-cum-Typist, then
serving in the College of Engineering and Technology at Akola,
has challenged the order of College Tribunal, dated 15.6.1995,
whereby his appeal challenging the punishment of dismissal
inflicted upon him on 17.6.1993 and filed under Section 45 of
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Amravati Universities Act, 1983, came to be dismissed. There
was an earlier appeal before the very same Tribunal and said
appeal was partly allowed on 8.10.1992 by the College Tribunal.
The Tribunal directed the respondents to reinstate the petitioner
and to proceed further with Departmental Enquiry. The Incharge
Principal then issued a charge sheet dated 19.11.1992 and
leveled following charge upon the employee.
“Article – 1.
That Shri J.B. Khadse, while functioning as
Clerk-cum-Typist of the college on 26th June 1990,
misconducted and misbehaved by supplying the copies
of solutions to some of the questions of structuralmechanics paper of Third year B. Arch. in Room No.
302, of the College building where the Summer 1990
Amravati University Exams was in progress and
defaming the higher authorities as detailed instatement of Imputation of Misconduct and
Misbehaviour given in annexure – II.”
2. The Departmental Enquiry was then started. The
petitioner made demand for change of Enquiry Officer, pointing
out that said Enquiry Officer was biased. He also requested for
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permission to engage advocate to represent him during
departmental enquiry and he also sought certain documents. He
also made grievance that subsistence allowance was not paid to
him. In the process, he cross examined only three of the
witnesses and did not cross-examine remaining three. The
Enquiry Officer thereafter submitted his report and the report was
then accepted by the Disciplinary authority as also Chairman of
the Managing Committee. The Incharge Principal thereafter on
17.6.1993 awarded major penalty of dismissal from service and
observed that it would be a disqualification for future
employment as per Rule 43(b)(v) of the Maharashtra Non-
Agricultural Universities and Affiliated Colleges Standard Code
(Terms and Conditions of Service of Non-Teaching employees)
Rules, 1984 (hereinafter referred to as Standard Code). The
employee then filed appeal registered as A/11-93 under Section
45 read with Section 47(2) of the Amravati Universities Act,
1983, and said appeal came to be dismissed on 15.6.1995 as
mentioned above.
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3. I have heard Shri Saboo, learned counsel for the
petitioner, Shri Kaptan, learned counsel for respondents No. 1 &
2 and Shri Parihar, learned AGP for respondent No. 7.
4. By pointing out facts mentioned above, Shri Saboo,
learned counsel, has contended that Incharge Principal is not
competent authority and therefore could not have issued either
the charge sheet or even could not have appointed Enquiry
Officer. According to him, such powers are vested only with
Regular Principal and those powers are required to be exercised
by Principal in consultation with Disciplinary Authority. He
contends that thus initiation of departmental enquiry is itself bad
and its conduct by the Enquiry Officer and advocate appointed by
Incharge Principal is also bad. He states that due to bias gathered
by the present petitioner, on account of some events, as disclosed
in various applications, he moved several applications for change
of Enquiry Officer but then no cognizance thereof was taken. He
urges that in other matters, the very same management has taken
a plea that legal Managing Committee was not functioning and
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therefore, there was no valid appointments and in the
circumstances present appointment of Enquiry Officer or issuance
of charge sheet was also not valid. He has invited attention to
various provisions of Standard Code, in order to show lack of
authority in such Incharge Principal. He has further stated that
considering the fact that his service was at stake, the petitioner
also moved several applications seeking permission to engage
Advocate.
The hostile attitude of Enquiry Officer and the
uncertain future, did not permit the petitioner to conduct cross
examination effectively and he points out that at least 30 such
applications were made to the management and the same were
rejected. The enquiry was concluded with undue haste and in
absence of advocate to represent him, the petitioner did not get
proper opportunity. He places reliance upon the judgment of the
Gujarat High Court in the case of Meeta J. Mehta (Smt.) vs.
Valsad-Dang Gramin Bank & Anr., reported at 1996 II CLR 587.
He further states that the charge was for supplying a chit
(copying material) to one student Shri Atul Bang, & said student
was not examined at all in departmental enquiry and therefore,
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the charge cannot be treated to be proved. To point out the
effect of withholding such an important witness, Shri Saboo,
learned counsel places reliance upon the judgment of Hardwari
Lal vs. State of U.P., reported at 2000 (84) FLR 3. He invites
attention to provisions of Section 24 of the Standard Code to
show that payment of subsistence allowance is mandatory and
points out that the College Tribunal has totally lost sight of this
fact and also of the fact that it issued some directions on
8.10.1992 while disposing of earlier appeal. He states that the
order of College Tribunal suffers from non application of mind
and non payment of subsistence allowance has vitiated the
enquiry. He further invites attention to Enquiry Report
particularly page 23 thereof and points out from para 13 that the
petitioner on number of occasions asked for copies of University
orders and also requested Enquiry Officer to direct management
to pay subsistence allowance but then that request was rejected
by erroneously stating that documents were not relevant. As
documents were not supplied, the petitioner could not conduct
cross examination effectively. Lastly, he argues that the entire
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service record of the petitioner is clean and unblemished except
for present misconduct. He urges that misconduct has also not
been proved conclusively & in such circumstances inflicting
punishment of civil death upon the petitioner is totally arbitrary
and a disproportionate punishment. Upon instructions, he states
that the petitioner is ready to forgo back wages or some part of
his wages if he is to be reinstated.
5. Shri Kaptan, learned counsel for respondents No. 1 & 2
relies upon the very same provision of Standard Code in order to
demonstrate that Incharge Principal possesses power and
authority to issue charge sheet and even to appoint Enquiry
Officer or to impose punishment. He invites attention to
judgment of this Court in the case of Hyderabad (Sind) vs. Nisha
Rajput, reported at 2004(1) Bom. C.R. 756, to state that in view
of provisions of Rule 44A(1), the Incharge Principal could have
inflicted such punishment. He further states that as Incharge
Principal was competent to appoint Class III and Class IV
servants, the petitioner being class III servant, in view of the
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judgment of the Hon’ble Apex Court in the case of Director
General, ESI vs. T. Abdul Razak, reported at (1996) 4 SCC 708,
the Incharge Principal was also a Disciplinary Authority and
hence objection to his competency as such is misconceived.
About subsistence allowance, he argues that by earlier order of
College Tribunal dated 08.10.1992, the petitioner was directed to
be reinstated and accordingly he was reinstated and fresh charge
sheet was issued and enquiry was conducted when he was in
service. He, therefore, states that there was no question of paying
any subsistence allowance. He also points out that as per said
order, the question of payment of subsistence allowance was to
be considered after the departmental enquiry was over as per
findings recorded therein and its conclusion. He points out that
in any case non payment of subsistence allowance by itself cannot
vitiate departmental enquiry. He places reliance upon the
judgment of the Hon’ble Apex Court in the case of U.P. State
Textile Corporation Ltd. vs. P.C. Chaturvedi, reported at (2005) 8
SCC 211. The very same judgment is relied upon by him to urge
that mere non supply of documents cannot have the effect of
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vitiating departmental enquiry until and unless the documents
demanded for and denied are shown to be relevant. He argues
that in present case, the documents have not been shown as
relevant at all. He further relies upon the judgment of the
Hon’ble Apex Court in the case of Indian Institute of Technology
vs. Union of India, reported at 1991 Supp. (2) SCC 12, to state
that denial of legal practitioner in present circumstances is not
fatal at all.
He places reliance upon the provisions of Rule
46(4)(c) to urge that in view thereof, the request for engagement
of lawyer as defence assistant has rightly not been entertained.
Lastly, he argues that the competency of Incharge Principal or
defences sought to be raised by the petitioner in present matter
already stand foreclosed in view of earlier adjudication and order
of College Tribunal dated 8.10.1992. He, therefore, prays for
dismissal of writ petition.
6. The charge sheet issued to the petitioner on
19.11.1992 is signed by the Incharge Principal and he has stated
that he as Incharge Principal and as Disciplinary Authority
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propose to hold departmental enquiry. In that capacity only, he
appointed Advocate Thakre as Enquiry Officer and also inflicted
major penalty of dismissal. In the order of dismissal dated
17.6.1993, he mentions that Enquiry Officer submitted his report
on 6.4.1993 and Disciplinary Authority has considered that report
and agreed with the findings of Enquiry Officer and came to the
conclusion that major penalty was necessary as per Rule 47(2) of
Standard Code. Then it mentions that show cause notice was
given to the petitioner thereafter, who submitted his reply and
thereafter again Disciplinary Authority has applied its mind and
then placed it before the President of the Shivaji Education
Society, Amravati. The President and Chairman of local Managing
Committee considered the case on merits and also found the
petitioner guilty for misconduct and ordered dismissal of the
petitioner. Then Incharge Principal has mentioned that he in the
capacity as Incharge Principal of College and Appointing
authority of the petitioner, with the approval of the President of
Shivaji Education Society, awarded major penalty of dismissal.
Reading of rule of this Standard Code does not show that
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Incharge Principal was not the Disciplinary Authority. It has not
been shown to this Court that there was any other Disciplinary
authority in the field. The provisions of Standard Code i.e. the
Maharashtra Non- Agricultural Universities and Affiliated
Colleges Standard Code (Terms and Conditions of Service of Non-
Teaching Employees) Rules, 1984, relied upon by both the
advocates show that Rule 2(3) defines “Appointing Authority” as
the authority competent to make appointments. It further
prescribes that the Appointing Authority for the affiliated colleges
shall be the management of the college or the authorities
specified by the management as per its constitution. Sub-rule (6)
defines “Competent Authority” to mean Competent Authority to
exercise different powers in the non-Agricultural Universities Acts
and in the rules specified therein. The Disciplinary Authority has
not been separately defined but then sub-rule (23) defines
“Management” to mean trustees or the managing or governing
body by whatever name called. Rule 3(2) deals with
appointments and vide clause (c), it stipulates that all
appointments including officiating temporary appointments in
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Class III and IV shall be made by the Registrar or the Principal.
Thus, as per this provision, Principal is the Appointing Authority.
Petitoner has not pointed out any provision or clause from
constitution of the trust/institute owning the college to indicate
that any other authority or person is prescribed as Disciplinary
Authority.
7.
The provisions of Rule 42 defines “Misconduct” and
Rule 43 prescribes “Penalties” therefor. The penalties are divided
into “minor” and “major” penalties as mentioned in sub-rule (1)
of rule 43. Dismissal from service which disqualify for future
employment under the University or the College, is a major
penalty as mentioned in sub-rule (b)(v). Rule 44A then deals
with “Disciplinary Authorities” and its sub-rule (1) states that
Competent Authority may impose any of the penalties laid down
in rule 43 on any the employee. However, the entire Standard
Code nowhere discloses which is this Competent Authority in the
sense as urged by the petitioner. Sub-rule (2) thereafter is
without prejudice to the provisions of sub-rule (1) and it
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authorizes the Appointing Authorities to impose any of these
penalties specified in Rule 43 upon members of class III and Class
IV serving under them. But then there is also a proviso to this
sub-rule (2) and it states that Principal of an affiliated college
shall exercise the powers of imposing minor penalties on Class III
and IV employees under their administrative controls. It is,
therefore, apparent that Class III and Class IV employees
contemplated by this proviso are not the employees in relation to
whom Principal is the Appointing Authority. Need for such
proviso becomes apparent from clause 5 and 6 of Form No.5
appended to College Code which prescribes duties and
responsibility of the Registrar of Universities. Thus, not only
Appointing Authority but also authority under whose
administrative control the employee is actually placed at the
relevant time, has been given power to impose minor penalties if
such employee is from class III or Class IV cadre. In other words,
in view of Rule 44A, Principal becomes the Disciplinary Authority
for the petitioner. Rule 46 then deals with procedure for
imposing major penalty and it again uses the word Competent
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Authority. Rule 46(1) permits Competent Authority to hold
enquiry either itself or to appoint an authority to inquire into the
truth of imputation of misconduct. Rule 46(2) then uses the
word Disciplinary authority and it states that when it is proposed
to hold enquiry against the employee, Disciplinary authority shall
draw up or cause to be drawn up the substance of imputation etc.
It is obvious that in view of the proviso which has been enacted to
Rule 44A(2), this rule 46(2) instead of using word Competent
Authority uses the word Disciplinary Authority. However, from
reading of provisions of Rule 44A and Rule 46 together, it is clear
that in cases like that of present petitioner, Competent Authority
and Disciplinary Authority is one and the same.
8. The contention of learned counsel for the petitioner
that Incharge Principal is not Competent Authority and
Disciplinary Authority, cannot be accepted. It is apparent that
when there is no Principal, the Incharge or officiating
arrangement is made for all legal and practical purposes. Insofar
as the administration is concerned, such person is actually a
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Principal and in view of provisions of Rule 44A read with Section
46, Incharge Principal is Disciplinary Authority and hence, a
Competent Authority. The definition of Competent Authority is
general one & depending upon the function required to be
discharged, the Competent Authority is bound to vary. It is clear
that Standard Code does not specify any particular or fixed
authority as Competent Authority for entire Code or the
Universities Act.
9. Insofar as prayers made by the petitioner for change of
Inquiry Officer are concerned, the perusal of applications made
by him for that purpose (annexed with writ petition) show trivial
events as reason therefor. In the application dated 5.3.1993, it is
mentioned that Enquiry Officer told him that if the petitioner was
not ready to participate in the enquiry he would proceed ex parte
and that he was throwing all applications filed by the petitioner
in dustbin and he (Enquiry Officer) had no answer to give. The
petitioner has also given copy of this application to Police Station.
However, it is difficult to accept that because of such conduct of
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Enquiry Officer, the petitioner was frightened. He has
immediately given police complaint and he has also given copy
thereof to the Enquiry Officer, to management and also to College
Tribunal. On 11.3.1993, he has contended in his application that
Enquiry Officer and Incharge Principal were colluding together
and taking down statements of witnesses as they wished.
However, again the allegation is extremely vague to deserve any
credence. Who was the witness in dock at that time, what was
the question put to him, what was the reply given by him and
how it was recorded by the Enquiry Officer, is nowhere pointed
out. His other applications are also on these lines and only
conclusion that can be drawn from such applications is that the
petitioner, who was reinstated during the pendency of
departmental enquiry because of order of College Tribunal dated
8.10.1992, wanted to prolong the proceedings.
10. This also becomes clear from his insistence for payment
of subsistence allowance. Though College Tribunal has while
considering this grievance in the impugned order has overlooked
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its earlier order dated 8.10.1992, I find that it has not materially
affected the conclusion reached by the College Tribunal. While
disposing of earlier appeal i.e. Appeal No. A/6/90 on 8.10.1992,
the College Tribunal directed the management to reinstate the
petitioner within 10 weeks’ from its order. It also directed that
enquiry should be completed within three months thereof. It
ordered that if the departmental enquiry was not started after
reinstatement or completed within time limit specified by it, or if
the petitioner was exonerated from charges, on conclusion of
such enquiry, he would be paid arrears of emoluments on the
basis of his full pay and allowances from the date he was put
under suspension. Thus, the College Tribunal was alive to the
fact that the employee reinstated by it was under suspension
earlier and had not received complete salary but then made
payment thereof or of balance salary to him dependent upon the
result of departmental enquiry. This order dated 8.10.1992 was
accepted and acted upon by the petitioner as also by the
management. The judgment of the Hon’ble Apex Court in the
case of U.P. State Textile Corporation Ltd. vs. P.C. Chaturvedi,
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(supra), clearly shows that non payment of Subsistence allowance
by itself is not sufficient to hold that enquiry is vitiated. Here, the
charge sheet itself was issued after the petitioner was reinstated
i.e. on 19.11.1992 and the entire enquiry was conducted when
the petitioner was in service. Thus, he was receiving full salary
till his dismissal from service vide order dated 17.6.1993. There
is no question of management paying him any subsistence
allowance after his reinstatement and during the pendency of this
departmental enquiry. It is obvious that the petitioner was
making grievance about non payment of subsistence allowance
before his first dismissal on 29.9.1990. That dismissal was set
aside on 8.10.1992 and therefore non payment of subsistence
allowance during that period has no bearing upon the
departmental enquiry which was initiated by serving upon him a
charge sheet dated 19.11.1992.
11. The grievance that the documents were not supplied to
the petitioner appears to be only a tactic to delay departmental
enquiry. The documents demanded by him are copies of some
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University orders and during arguments Adv. Saboo has been
invited attention to entries at Sr. Nos. 8, 9 and 10 in para 13 of
the Enquiry Report. Entry Nos. 8 and 10 are in relation to some
document i.e. copies of University Orders while entry No. 9 is
about demand of subsistence allowance within 48 hours. What
was the relevance of University orders on misconduct committed
by the petitioner for which he was departmentally tried is
nowhere disclosed or commented upon. Even during arguments,
the nature of those documents or there relevance for the purposes
of defence of the petitioner has not been demonstrated. In U.P.
State Textile Corporation Ltd. vs. P.C. Chaturvedi (supra), the
Hon’ble Apex Court has held that employee has to point out and
prove prejudice caused to him because of non supply of such
documents. Thus, non supply of documents ipso facto is held to
be not sufficient to vitiate the enquiry. Same view is taken by the
Hon’ble Apex Court while narrating the circumstances in which
departmental enquiry can be held to be vitiated in its judgment in
the case of State Bank of Patiala vs. S.K. Sharma, reported at
(1996) 3 SCC 364.
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12. The contention that there was no permission given to
engage advocate and rejection was wrongful, is again without
any substance. Here, only Enquiry Officer was an advocate while
the presenting officer was Lecturer from the very same College.
The provisions of Rule 46(4)(c) permits Disciplinary Authority to
appoint Enquiry Officer and at the same time to appoint any
employee or legal practitioner as Presenting Officer to present the
case in support of articles of charge. Said sub-rule (c) also
mentions that the employee can take assistance of any other
employee to represent the case on his behalf but he may not
engage legal practitioner unless the Presenting Officer is a legal
practitioner or Disciplinary Authority having regard to
circumstances, permit him to engage legal practitioner. Thus, in
present facts, the Presenting Officer was not legal practitioner. In
view of this provision, the petitioner could not have engaged
legal practitioner as defence representative. It is no doubt true
that he wanted to engage legal practitioner to assist him but then
he has not pointed out as to why such assistance of legal
practitioner was essential. The charge was only of supplying
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copies of answers to certain questions during third year B. Arch.
Examination during 1990 Amravati University Examination and
defame higher authorities. The petitioner has in fact cross
examined three of the witnesses examined by the management in
support of the charge. Either in appeal memo or before this
Court, he has not demonstrated what prejudice he faced while
conducting this cross examination or then why he did not cross
examine remaining three witnesses. Even in his applications, he
has not given any justifiable excuses for seeking assistance of
legal practitioner. The judgment of the Hon’ble Apex Court in the
case of Indian Institute of Technology vs. Union of India (supra)
shows that when the delinquent employee there (Lecturer)
instead of submitting application for permission to engage lawyer
to Disciplinary Authority moved the same before the Enquiry
Officer, summary rejection of his application by Enquiry Officer
would not vitiate the enquiry. In paragraph 5, the Hon’ble Apex
Court has considered the provisions of Rule 14(8)(a) of the
Central Civil Services (Classification, Control and Appeal) Rules,
1965, which is more or less pari materia with Rule 46(4)(c) and
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found that when Presenting Officer was not legal practitioner,
there was no question of blaming Enquiry Officer in these
circumstances. In AIR 1983 S.C. 109 “Board of Trustees of the
Port of Bombay v. Dilipkumar Raghavendranath Nadkarni“, Hon.
Apex Court holds that where in an enquiry before a domestic
tribunal the delinquent officer is pitted against a legally trained
mind, if he seeks permission to appear through a legal
practitioner the refusal to grant this request would amount to
denial of a reasonable request to defend himself and the essential
principles of natural justice would be violated. Hon. Apex Court
in Crescent Dyes and Chemicals Ltd v. Ram Naresh Tripathi,
(1993) 2 SCC 115 : (1993 AIR SCW 1106), laid down that the
right to be represented in the departmental proceedings initiated
against a delinquent employees can be regulated or restricted by
the management or by the Service Rules. It was held that the
right to be represented by an advocate in the departmental
proceedings can be restricted and regulated by statutes or by the
Service Rules including the Standing Orders, applicable to the
employee concerned. The whole case law was reviewed by Apex
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Court in Bharat Petroleum Corporation Ltd. v. Maharashtra Genl.
Kamgar Union, (1999) 1 SCC 626 : (1999 AIR SCW 64), and it
was held that a delinquent employee has no right to be
represented by an advocate in the departmental proceedings and
that if a right to be represented by a co-workman is given to him,
the departmental proceedings would not be bad only for the
reason that the assistance of an advocate was not provided to
him.
13. The last contention which needs to be considered is
non examination of the student Atul Bang. As per the charge
sheet and Enquiry Report, Atul Bang was the beneficiary and the
petitioner supplied the solutions of questions to him. It is not in
dispute that he was caught in copying the answers from carbon
copy and charge upon the petitioner was that he delivered that
carbon copy at about 6.00 PM on 26.6.1990. It is also not in
dispute that case of unfair means was registered against Atul
Bang. It is, therefore, obvious that it was not necessary to
examine Atul Bang as witness to prove this charge. There was no
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question of Atul Bang supporting the case of the management
because that would have been against his own interest. It is
further obvious that if Atul Bang was to be examined in
departmental enquiry, it was for the petitioner to summon him in
his defence. I, therefore, find this ground of attack also without
any merit.
14.
The punishment of dismissal from service for such
charge cannot be said to be arbitrary at all. The quantum of
punishment is to be decided by the management after considering
the gravity and nature of misconduct. As already mentioned
above, Rule 43(1)(b)(v) enables the Disciplinary Authority to
impose punishment of dismissal from service. The procedure for
imposing major penalty has been followed as specified in rule 46
in the instant matter. The misconduct of supplying copying
material to a student in University Examination is established
here. The misconduct, therefore, is of serious nature and
considering the fact that the petitioner was Clerk-cum-Typist in
an Educational Institution (College), it is clear that the
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management was justified in treating it as grave and serious
misconduct. It brings bad name to the institution itself & it is
difficult to repose faith in such employee. The punishment of
dismissal, therefore, cannot be treated as unreasonable,
insufficient or unwarranted in these circumstances. I, therefore,
find that this argument about disproportionate character of
punishment also needs to be rejected.
15. In these circumstances, I do not find any merit in the
petition. Writ Petition is, therefore, dismissed. However, in the
circumstances of the case, there shall be no order as to costs.
JUDGE
*******
*GS.
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