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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2034 OF 1997
Vaijanath M. Kalase ...Petitioner
vs.
Ratnagiri Education Society & Ors. ...Respondents
Mr.Sanghraj D. Rupwate with Mr.Gajanan P. Lasme for the
Petitioner
Mr.A.V.Bukhari with M.B.V.Bukhari for Respondent Nos.1 & 3
Mr.Rui Rodrigues with Mr.B.V.Phadnis for Respondent Nos.4 & 5.
CORAM: DR.D.Y.CHANDRACHUD,J.
DATE : JULY 3, 2008.
ORAL JUDGMENT:
1. The Petition
ig impugns an order passed by the Presiding
Officer of the College Tribunal on 9th January 1997 by which
the Appeal filed by the Petitioner, questioning his dismissal
from service on 27th September 1995, was rejected.
2. The first Respondent is a public trust registered under
the Bombay Public Trusts Act,1950 and conducts an Arts,
Commerce and Science college at Ratnagiri. The Petitioner was
appointed as a lecturer on 7th August 1980 and was teaching
the Foundation course and Rural Development. On 21st October
1994, the Petitioner was suspended pending an enquiry into an
allegation of misconduct. The allegation against the
Petitioner is to the effect that while conducting the
Foundation Course for the First Year B.A.students, he used
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obscene,filthy and abusive language towards the students in
the classroom; and that in particular, he used vulgar
language against women students. The statement of allegations
annexed to the charge was to the following effect :
“(1) That you while conducting the periods of the Foundation
Course of First Year B.A. used obscene and filthy and
very abusive language like ‘Haramkhor’ and ‘Bhedrat’ and
used other filthy words. You have also given wrong
teachings to the students of the said class by saying
‘Ram was thief and Ravan was very decent’. Further you
have also
made statements like ‘Brahmins are liars and
Haramkhor’. You talk mostly on irrelevant things not
concerning with the syllabus. These above facts have
been recorded in a statement by a student Shri Mane
Suryakant Vinay of First Year B.A. on 28-9-1994.
(2) That you intentionally use very obscene and vile language
without bothering that there are lady students in the
class. You used words like ‘Nalayak’ and ‘Bajari’
(having low character) to the lady students. You have
asked the lady students to get out of the class. You
also insult the parents of the students by using abusive
language.
. The above facts have been recorded in a Statement made by
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Kum. Deorukhakar Aruna Pandurang of the First Year B.A.
Class on 28-9-1994.
(3) That your behaviour at the time of teaching to the
students in the class is very indecent and vulgar. That
the lady students feel ashamed to sit in your class
because of your misconduct and misbehaviour and because
of the language you use for the lady students like
‘Nalayak’, ‘Bajari’ etc.
. The above facts have been recorded in statement made by
Kum. Ghag
Aruna Shrikant a student of First Year B.A.
on 28-9-1994.
(4) That at the time of conducting the Classes you refer to
the parents of the students and use insulting and abusive
language without caring that there are lady students
attending to the lectures.
. The above facts have been recorded in a Statement given
by Shri Damle Makarand Prabhakar of First Year B.A. on
28-9-1994.
(5) That the language you use in the Class is very vulgar and
cheap which would make any lady student attending the
class feel ashamed. You get annoyed if any student tells
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you that what you said is wrong to which in turn you say
that “if you are a legal child of your parents and you
know who your parents are, get up to prove that I am
wrong”. You also give wrong teaching to the students of
the class, by saying that “Shivaji was very unjust and a
partial ruler and he harassed the backward class.”
. These facts have been recorded in a statement made by
Kum. Shetye Swati Vijay a student of First Year B.A. on
10-10-1994.
(6) That you
while teaching the subject give insulting
references of Prabhu Ram, Shrikrishna and to Shivaji
Maharaj. That the language you use is vulgar and abusive
and that there is always tension and fear in the minds of
the students when they attend your lectures. That when
some of the lady students of the First Year B.Sc. Class
tried to tell you not to make such indecent statements,
you instead used very abusive language in a very cheap
manner and you not only insulted the lady students but
also made insulting statements to the parents of these
lady students. The words and language used by you is
such that even a peon would not utter such words. Due to
this behaviour of yours the students avoid to attend your
lectures because your teachings as it is, are not related
to the subject in any way. But only filthy and indecent
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statements are made by you in the Class.
. These facts have been recorded in a statement given by
Kum.Kokate Ashwini Vijay a student of First Year B.Sc.
(7) That the words used by you are so dirty and most
shameful, that you call the students as thieves. That
you call the lady students Nalayak and that they sit in
the Class and have got no shame for the same. You also
make such statements like saying that the parents of the
students are thieves and beggars and your teachings and
the words used by you are filthy and cheap.
. The facts have been recorded by statements given by (1)
Shri Ambre Shivaji Bhikaji, student of First Year B.Com.
(2) Shri Dalvi Santosh Vasant, Student of First Year
B.Com. (3) Shri Chalke Uday Sitaram, student of First
Year B.Com. Hence, your behaviour and conduct in the
class while teachings to the students is in violation of
the Code of Conduct more particular described in Statute
No.439 (9a) (ii) and (b), of the Statutes framed under
the Bombay University Act,1974.”
3. The Petitioner denied the charges. The management
appointed an advocate as Enquiry Officer. During the course
of enquiry, the petitioner was permitted to be represented
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through a representative of his choice namely, by a
teacher/office bearer of the Association. The management
examined five witnesses all of them being students who deposed
about the nature of the behaviour of the Petitioner while
conducting his classes. Upon the conclusion of the
disciplinary enquiry, the Enquiry Officer entered a finding of
misconduct in respect of two of the charges. The Enquiry
Officer held that the Petitioner had violated the code of
conduct. He held that the misbehaviour of the petitioner was
derogatory to the status and dignity of a teacher, which
amount to moral turpitude. The Enquiry Officer came to the
conclusion that the charge of wilful and persistent negligence
of duty was not proved. Following the report of the Enquiry
Officer, the petitioner came to be dismissed from service on
25th September 1995.
4. The order of dismissal was challenged by the Petitioner in
an appeal before the College Tribunal. By the order which is
impugned in this proceeding, the Presiding Officer of the
University and College Tribunal came to the conclusion that
the enquiry was proper and the charge against the respondent
was duly established. However, having regard to the fact that
the petitioner was in service since 1980 as a full time
lecturer, and that he belongs to a Nomadic Tribe and since the
order of dismissal would result in a loss of service benefits,
the Tribunal substituted the order of dismissal by an order of
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compulsory retirement. During the pendency of the petition,
the petitioner has received the benefit of ad hoc pension.
5. The challenge to the order of the University and College
Tribunal, in the submissions which have been urged before the
Court has been on the following counts; (i) The first
submission is that the Enquiry Officer had resigned on 20th
February 1995 but on a resolution passed by the Governing
Council on 3rd March 1995, he was persuaded to continue the
enquiry. The submission is that the petitioner had a
reasonable apprehension that the Enquiry Officer was biased
and the enquiry
ig stands vitiated on that ground. (ii) No
permission was given to the petitioner to engage an advocate;
(iii) The defence representative defended the petitioner by
cross examining two witnesses. During the enquiry, the
defence representative had indicated that he had received
threats for defending the petitioner and he did not cross
examine the remaining three witnesses (the remaining witnesses
were cross examined by the petitioner); (iv) The enquiry was
vitiated by malafides – the petitioner was the senior most
amongst reserved category candidates and had worked for
fourteen years without any grievance. He was victimised in
order to obstruct his chance of being promoted as the Head of
the institution and (v) In the year 2001, a fact Finding
Committee of the University of Mumbai primafacie came to the
conclusion that the petitioner had suffered at the hands of
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the management and directed the management to reinstate him
subject to the order that may be passed in these proceedings.
(vi) The charges levelled against the petitioner are vague
because the particulars of the date, month or time when the
obscene words were used are not given. (vii) The punishment
of dismissal from service is disproportionate.
6. Each of the submissions now fall for determination. At
the appropriate stage, the defence which has been raised on
behalf of the Respondent-management would be considered.
7.
At the outset, it needs to be noted that in January 1995,
the petitioner had instituted a writ petition before this
court under Article 227 of Constitution of India (Writ
Petition No.419 of 1995) in order to challenge (i) The order
of suspension dated 21st October 1994, (ii) The charge sheet
dated 4th December 1994; and (iii) The order passed by the
Enquiry Officer on 13th January 1995 declining permission to
the petitioner to be represented by an Advocate during the
course of enquiry. The writ petition was dismissed as
withdrawn. The withdrawal of the writ petition would preclude
the petitioner from questioning the legitimacy of the charge
sheet on the ground of vagueness and from urging the objection
that he was not permitted to be represented by an advocate.
Both these grounds were available when he instituted the
earlier proceeding and there was a specific challenge to the
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legality of the charge sheet as well as the decision not to
allow him to be represented by an advocate. That challenge
came to an end upon the withdrawal of the earlier writ
petition.
8. Quite apart from the impact of the withdrawal of the
earlier proceeding in this court, there is no substance in the
challenge that the charge-sheet was vague or in the allegation
that there was a violation of the principles of natural
justice on account of the denial by the Enquiry Officer to the
petitioner of an opportunity to be represented by an advocate.
In so far as vagueness of the charge is concerned, it is clear
from a reading of the charge sheet that the petitioner was
placed on notice that the enquiry related to his misbehaviour
while conducting classes and arose out of the derogatory
language that was used by him against the students,
particularly in respect of women students. The statements of
students were referred to in the statement of allegations
together with the dates on which those statements were
recorded. The obscene words which were allegedly used by the
petitioner were adverted to in the chargesheet. The
petitioner was given notice of the nature of enquiry and the
allegations of misconduct. During the course of the
proceeding before the Enquiry Officer on 11th January 1995,
the petitioner stated that he had understood the nature of
allegations and the charges levelled against him and proceeded
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thereafter to deny the charges. The enquiry Officer noted
that the petitioner had filed a reply of fourteen pages
denying the charges. In the circumstances, it is not possible
to accede to the contention that the charges were vague and
that the enquiry stood vitiated on that ground.
9. The petitioner was permitted to be represented by a
defence representative of his choice viz; Shri V.B.Rokade,
who was a member of the teaching staff in the institution and
the office bearer of the teachers’ association. There is no
absolute rule of law by which an opportunity to defend oneself
requires
assistance necessarily of an advocate or of a person
trained in law. The Presenting Officer in the present case
was not a lawyer. The principles of natural justice were
complied with by permitting the petitioner to have the
assistance of a defence representative who was a teacher and a
member/office bearer of the teachers’ association.
9A. But the submission which is urged on behalf of the
Petitioner is that during the course of the enquiry, the
defence representative had addressed a letter dated 9th
February 1995 to the Principal of the college recording that
he had received a telephone call at the premises of the
college warning him against the consequences of defending the
petitioner at the enquiry. It was urged that as a result, the
defence representative would have been under a sense of fear
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which would result in a violation of natural justice.
10. Having perused with the assistance of the learned counsel
appearing for the parties, the entire record of the enquiry it
is not possible to accede to the submission of the learned
counsel for the petitioner. The record of the enquiry shows
that after the letter dated 9th February 1995, the defence
representative remained present during the course of the
enquiry when evidence was being recorded. Two of the
witnesses of the management were examined by the defence
representative on 6th March 1995 and 12th April 1995
respectively.
The evidence of the defence witness was also
recorded in the examination-in-chief conducted by the defence
representative. The learned counsel appearing on behalf of
the petitioner has fairly stated before the court that as a
matter of fact, no application was filed before the Enquiry
Officer seeking replacement of the defence representative or
for permission to appoint a fresh defence representative. It
is evident from the record that the defence representative
participated in the defence of the petitioner by attending the
enquiry throughout. The defence representative in fact filed
his letter of authority on 28th February 1995 after his
earlier letter of 9th February 1995. In these circumstances,
the submission that there was a violation of the principles of
natural justice cannot be accepted.
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11. The principal challenge in the present case is that the
Enquiry Officer tendered his resignation on 28th February 1995
after a charge of bias was made by the petitioner but was
persuaded by the management to recall his resignation. The
learned counsel submitted that consequently, there was a
reasonable apprehension of bias on the part of the Enquiry
Officer and it was appropriate and proper that the Enquiry
Officer should desist from conducting the enquiry. While
dealing with this submission, it was urged on behalf of the
management that no challenge to this effect has been pleaded
in the writ petition. But that apart, it is necessary for
this court to scrutinise whether there is any substance in the
submission. The record of the enquiry shows that on 8th
February 1995, the Enquiry Officer had queried the petitioner
about the status of the earlier writ petition which he had
moved before this court. When the Presenting Officer
attempted to make a submission, the Petitioner used abusive
words against him. The Enquiry Officer recorded the incident
and observed that the Petitioner should maintain discipline in
the enquiry proceeding by desisting from the use of abusive
language. The Enquiry Officer warned the Petitioner that the
matter would be referred to the Tribunal, in accordance with
the governing statute. A complaint was also filed by the
Presenting Officer before the Enquiry Officer together with a
supporting affidavit and the affidavit of typist who was
present during the course of the enquiry. It must be noted
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that after the incident of 8th February 1995, the enquiry was
reconvened on 16th February 1995 when the petitioner was
absent and it was on 28th February 1995 that the petitioner
filed an application calling upon the Enquiry Officer to
refrain from acting in the proceeding. The Enquiry Officer in
the course of the proceeding recorded that he was pained by
the conduct of the petitioner and the allegations which were
levelled against him were untrue. The Enquiry Officer
recorded that faced with the use of abusive language by the
petitioner he had administered a warning during the course of
the enquiry calling upon the petitioner to maintain discipline
during
the conduct of the enquiry. The Enquiry Officer noted
that though the allegations against him were untrue, he was
requesting the management to relieve him of the enquiry by
tendering his resignation. On 3rd March 1995, the Governing
Council passed a resolution requesting the Enquiry Officer to
continue with the enquiry and expressed that the management
had trust and confidence in him to conduct the enquiry in an
impartial manner. The Enquiry Officer was requested to
proceed with the enquiry since the allegations levelled
against him were baseless. The enquiry therefore commenced on
6th March 1995. It is an admitted position before this court
that the petitioner did not raise any objection to the
continuation of the enquiry and willingly participated in the
enquiry.
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12. The submission of the learned counsel for the petitioner
that the Enquiry Officer should have desisted from acting as
such and that he was biased against the petitioner cannot be
accepted. The record of the enquiry would show that at the
stage when the petitioner obstructed the enquiry by using
abusive language against the Presenting Officer, even the
evidence was yet to be recorded. Little had transpired during
the course of the enquiry save and except for the order that
was passed by the Enquiry Officer permitting the Petitioner to
be represented by a defence representative but declining the
assistance of an advocate. The Enquiry Officer recorded that
he had
administered a warning to the Petitioner to maintain
discipline during the course of the enquiry. Significantly,
the allegation of bias did not surface on the next date of
hearing which was 16th February 1995 since the petitioner and
his representative were absent on that date. On 28th February
1995, the petitioner filed an application calling upon the
Enquiry Officer to desist from conducting the enquiry. The
Enquiry Officer has recorded the events which took place and
it is evident that at that stage, faced with obstructive
tactics adopted by the Petitioner, the Enquiry Officer
expressed his desire to be relieved from the enquiry. The
management addressed a letter to him on 3rd March 1995
following which the enquiry continued on 6th March 1995. A
chargesheeted employee cannot make a virtue of his own
obstructive behaviour in the course of a disciplinary enquiry.
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Faced with obstructive tactics, the Enquiry Officer is
justified in taking necessary steps in order to ensure that
the enquiry proceeds in an even and orderly manner. The
Enquiry Officer in the present case has recorded that there
was no substance in the allegations but he expressed the
desire to be relieved from the enquiry. That he was persuaded
not to do so, cannot be indicative of a bias against the
chargesheeted workman. If the submission were to be accepted,
it will result in a consequence that a chargesheeted employee
could at his own will obstruct a disciplinary enquiry by
raising untenable allegations against the Enquiry Officer and
then suggest
that he desist from conducting the enquiry.
Accepting such a submission would result in negating the
disciplinary process. Significantly, when the Enquiry Officer
resumed the enquiry on 6th March 1995, the petitioner
participated in the enquiry without protest.
13. The charge against the petitioner was a serious charge
involving the use of abusive and improper language while
conducting his classes. 53 students had initially furnished
their complaints to the management on 20th September 1994.
Statements of 9 students were recorded and 5 students deposed
during the course of the enquiry. It is an admitted position
that the petitioner was furnished with the preliminary report,
statements of 9 students and a copy of the joint complaint.
The evidence of 5 students who deposed in the enquiry remained
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unshaken during the course of the enquiry. Each of the
students deposed to the exact nature of the behaviour of the
petitioner while conducting his classes and to the use of
obscene language particularly against women students. Three
of the students who deposed were women students. The true
test in law is whether the finding of misconduct is supported
by some evidence on record. During the course of the enquiry,
Kum. Ashwini Vijay Kokate deposed about the nature of the
behaviour of the petitioner in the following terms :
“….I say that Prof.Shri Kalse used to address the girl
students
by saying that they are Nalayak. I further say
that Prof Kalse used to abuse the girl students by using
filthy words. I say that Prof. Shri Kalse used to use
abusive language towards the parents of the girl
students. I say that Prof Kalse used to sit in the class
by keeping his legs on the table and hence his style of
sitting in the class was not proper.
14. The next witness Kum.Swati Vijay Shetye deposed against
the petitioner in following terms :
“….I say that he was to use very cheap and vulgar language.
I say that he never used to maintain decorum while
talking to the girl students.
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. He used to tell to the girl students that you just knew
with make-up and parade in the college like whores. I
say that if any student in the class did not understand
the teaching of Prof. Kalse and if he says so to Prof.
Kalse, Prof. Kalse used to get annoyed with that student
and used to say that if you are a legal child of your
parents then you should stand up and speak.”
15. The aforesaid witness also stated that the Petitioner
along with one person had come to her home on 16th January
1995 and warned her parents of the dire consequences that
would be faced if their daughter deposed in the enquiry.
16. The third witness Kum.Aruna Pandurang Deorukhkar deposed
to the following effect :
“….It is true that Prof. Kalse was to use insulting and
derogatory language towards the parents of the students.
It is true that Prof. Kalse used to say that the girls
students in my class are BAJARI and NALAYAK and I have
stated the same thing in my personal statement. ”
17. The third student lived with her mother, her father
having expired, and she deposed that the petitioner had
administered a threat to her mother.
18. The remaining two witnesses deposed to the nature of the
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language used by the Petitioner and the relevant part of the
deposition of the fourth witness Shri Sambhaji Shivaji Ambre,
is to the following effect :
“….I say that at the time of teaching to the students in the
class Prof. Kalse used to teach to the students that the
students should follow the ideology of DAWOOD because he
is very brave.
. In the month of January 1995 Prof. Kalse met me at the
entrance of our college and told me that why you are
getting yourself involved in my case and what benefit you
would get from this. He further told me that I will pay
you money and you should not participate in my Inquiry on
behalf of the college.”
19. On this state of the evidence, the Enquiry Officer cannot
be faulted for coming to the conclusion that the charge of
misconduct is established. The only witness who deposed on
behalf of the Petitioner stated that she was unaware of the
complaint and she believed that it related to a college
picnic.
20. A departmental enquiry is not governed by strict rules of
evidence. The standard of proof that is required is proof
based on a preponderance of probabilities and not proof beyond
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reasonable doubt as in a criminal trial. Reference can be
made to the Judgment of the Supreme Court in Saini R.S. vs.
State of Punjab (1999-II-LLJ page 236) where it was held as
follows :
“15…the Court while exercising writ jurisdiction will not
reverse a finding of the enquiry authority on the ground
that the evidence adduced before it is insufficient. If
there is some evidence to reasonably support the
conclusion of the enquiring authority, it is not the
function of the Court to review the evidence and to
arrive at
ig its own independent finding. The enquiring
authority is the sole Judge of the facts so long as there
is some legal evidence to substantiate the finding and
the adequacy or reliability of the evidence is not a
matter which can be permitted to be canvassed before the
Court in writ proceedings.”
21. The charge of misconduct in this case is supported by
credible and reliable evidence. The University and College
Tribunal was justified in coming to the conclusion that the
charge was duly established.
22. There was no material on the record to establish that the
enquiry was vitiated by malafides. Malafides have to be
proved and established by cogent and reliable evidence. That
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is absent in the present case. The University of Mumbai had
held a fact finding enquiry. However, it is evident from the
report of the Committee that the enquiry largely related to
allegations against the management and administration of the
college. The learned counsel for the University has fairly
submitted that the enquiry which was convened by the
University did not impinge upon the disciplinary proceedings.
The University was not as a matter of fact, exercising the
disciplinary jurisdiction since the allegations of misconduct
had been enquired into in the disciplinary proceeding
instituted by the first Respondent.
23. The submission that the penalty is disproportionate to
the misconduct cannot be accepted. As a matter of fact, the
tribunal has in the fair exercise of its discretion
substituted the penalty of dismissal by one of compulsory
retirement in order to ensure that the petitioner is not
entirely deprived of his service benefits. The charge of
misconduct which has been established against the petitioner
is serious. In the affidavit-in-reply which has been filed by
the management in this proceeding, reference has been made to
the previous punishments which were imposed upon the
petitioner for acts of misbehaviour. The service record of
the petitioner is not free from blemish.
24. Consequently, no interference is warranted in exercise of
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the writ jurisdiction under Articles 226 and 227 of the
Constitution of India. The Petition is dismissed. There will
be no order as to costs.
* * * * *
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