{"id":139645,"date":"2008-09-26T00:00:00","date_gmt":"2008-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/presently-nil-vs-the-secretary-on-26-september-2008"},"modified":"2015-09-25T09:27:30","modified_gmt":"2015-09-25T03:57:30","slug":"presently-nil-vs-the-secretary-on-26-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/presently-nil-vs-the-secretary-on-26-september-2008","title":{"rendered":"Presently Nil vs The Secretary on 26 September, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Presently Nil vs The Secretary on 26 September, 2008<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                        1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                    \n               WRIT PETITION NO. 2224 OF 1995\n\n\n\n\n                                            \n     Jaiwant s\/o Bapurao Khadse,\n     aged 37 years, occupation -\n\n\n\n\n                                           \n     Presently Nil, c\/o Santosh Mote,\n     Deshmukh File, Akola,\n     Tq. & District - Akola.                   ... PETITIONER\n\n\n\n\n                                 \n                         Versus\n                    \n     1. The Secretary,\n        Shri Shivaji Education Society,\n                   \n        Shivaji Nagar, Amravati.\n\n     2. The Principal (Incharge),\n        College of Engineering &\n      \n\n        Technology, Near Shivaji Park,\n        Akola, Tq. & District - Akola.\n   \n\n\n\n     3. Professor C.V. Deshmukh,\n        Professor Incharge Examination,\n        H.O.D. Production Department,\n\n\n\n\n\n        College of Engineering and\n        Technology, Akola.\n\n     4. Shri S.K. Patil, Lecturer,\n        Assistant to Respondent No.3,\n\n\n\n\n\n        Production Department,\n        College of Engineering and\n        Technology, Akola.\n\n     5. Shri V.T. Bhugul, Lecturer in\n        Chemistry, Conductor for\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 13:54:52 :::\n                                      2\n        Examination, College of\n        Engineering and Technology,\n\n\n\n\n                                                                    \n        Akola.\n\n\n\n\n                                            \n     6. Shri N.D. Kakkad,\n        Junior Clerk, College of\n        Engineering and Technology,\n        Akola.\n\n\n\n\n                                           \n     7. The College Tribunal,\n        Aurangabad, represented by\n        the Presiding Officer,\n\n\n\n\n                                 \n        Aurangabad.                            ... RESPONDENTS\n                    \n     Shri N.R. Saboo, Advocate for the petitioner.\n     Shri C.S. Kaptan, Advocate for respondents No.1 & 2.\n                   \n     Shri Anoop Parihar, AGP for respondent No. 7.\n                         .....\n\n                              CORAM :     B.P. DHARMADHIKARI, J.\n<\/pre>\n
                                          SEPTEMBER 26, 2008.\n<\/p>\n
     ORAL JUDGMENT :\n<\/p>\n
               By this writ petition filed under Articles 226 and 227 of<\/p>\n
     Constitution of India, the petitioner, a Clerk-cum-Typist, then<\/p>\n
     serving in the College of Engineering and Technology at Akola,<\/p>\n
     has challenged the order of College Tribunal, dated 15.6.1995,<\/p>\n
     whereby his appeal challenging the punishment of dismissal<\/p>\n
     inflicted upon him on 17.6.1993 and filed under Section 45 of<\/p>\n
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\n                                        3<\/span>
\n     Amravati Universities Act, 1983, came to be dismissed. There<\/p>\n
     was an earlier appeal before the very same Tribunal and said<\/p>\n
     appeal was partly allowed on 8.10.1992 by the College Tribunal.\n<\/p>\n
     The Tribunal directed the respondents to reinstate the petitioner<\/p>\n
     and to proceed further with Departmental Enquiry. The Incharge<\/p>\n
     Principal then issued a charge sheet dated 19.11.1992 and<\/p>\n
     leveled following charge upon the employee.\n<\/p>\n
          “Article – 1.\n<\/p><\/blockquote>\n
                      That Shri J.B. Khadse, while functioning as<\/p>\n
          Clerk-cum-Typist of the college on 26th June 1990,
\n          misconducted and misbehaved by supplying the copies
\n          of solutions to some of the questions of structural<\/p>\n
          mechanics paper of Third year B. Arch. in Room No.<\/p>\n
          302, of the College building where the Summer 1990
\n          Amravati University Exams was in progress and
\n          defaming the higher authorities as detailed in<\/p>\n
          statement       of   Imputation   of      Misconduct            and
\n          Misbehaviour given in annexure – II.”\n<\/p><\/blockquote>\n
     2.        The Departmental Enquiry was then started.                         The<\/p>\n
     petitioner made demand for change of Enquiry Officer, pointing<\/p>\n
     out that said Enquiry Officer was biased. He also requested for<\/p>\n
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\n                                      4<\/span>
\n     permission to engage advocate to represent him during<\/p>\n
     departmental enquiry and he also sought certain documents. He<\/p>\n
     also made grievance that subsistence allowance was not paid to<\/p>\n
     him.   In the process, he cross examined only three of the<\/p>\n
     witnesses and did not cross-examine remaining three.                    The<\/p>\n
     Enquiry Officer thereafter submitted his report and the report was<\/p>\n
     then accepted by the Disciplinary authority as also Chairman of<\/p>\n
     the Managing Committee. The Incharge Principal thereafter on<\/p>\n
     17.6.1993 awarded major penalty of dismissal from service and<\/p>\n
     observed that it would be a disqualification for future<\/p>\n
     employment as per Rule 43(b)(v) of the Maharashtra Non-\n<\/p>\n
     Agricultural Universities and Affiliated Colleges Standard Code<\/p>\n
     (Terms and Conditions of Service of Non-Teaching employees)<\/p>\n
     Rules, 1984 (hereinafter referred to as Standard Code).                 The<\/p>\n
     employee then filed appeal registered as A\/11-93 under Section<\/p>\n
     45 read with Section 47(2) of the Amravati Universities Act,<\/p>\n
     1983, and said appeal came to be dismissed on 15.6.1995 as<\/p>\n
     mentioned above.\n<\/p>\n
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\n                                       5<\/span><\/p>\n
     3.         I have heard Shri Saboo, learned counsel for the<\/p>\n
     petitioner, Shri Kaptan, learned counsel for respondents No. 1 &<\/p>\n
     2 and Shri Parihar, learned AGP for respondent No. 7.\n<\/p>\n
     4.         By pointing out facts mentioned above, Shri Saboo,<\/p>\n
     learned counsel, has contended that Incharge Principal is not<\/p>\n
     competent authority and therefore could not have issued either<\/p>\n
     the charge sheet or even could not have appointed Enquiry<\/p>\n
     Officer.   According to him, such powers are vested only with<\/p>\n
     Regular Principal and those powers are required to be exercised<\/p>\n
     by Principal in consultation with Disciplinary Authority.                  He<\/p>\n
     contends that thus initiation of departmental enquiry is itself bad<\/p>\n
     and its conduct by the Enquiry Officer and advocate appointed by<\/p>\n
     Incharge Principal is also bad. He states that due to bias gathered<\/p>\n
     by the present petitioner, on account of some events, as disclosed<\/p>\n
     in various applications, he moved several applications for change<\/p>\n
     of Enquiry Officer but then no cognizance thereof was taken. He<\/p>\n
     urges that in other matters, the very same management has taken<\/p>\n
     a plea that legal Managing Committee was not functioning and<\/p>\n
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\n                                      6<\/span>
\n     therefore, there was no valid appointments and in the<\/p>\n
     circumstances present appointment of Enquiry Officer or issuance<\/p>\n
     of charge sheet was also not valid. He has invited attention to<\/p>\n
     various provisions of Standard Code, in order to show lack of<\/p>\n
     authority in such Incharge Principal. He has further stated that<\/p>\n
     considering the fact that his service was at stake, the petitioner<\/p>\n
     also moved several applications seeking permission to engage<\/p>\n
     Advocate.\n<\/p>\n
                  The hostile attitude of Enquiry Officer and the<\/p>\n
     uncertain future, did not permit the petitioner to conduct cross<\/p>\n
     examination effectively and he points out that at least 30 such<\/p>\n
     applications were made to the management and the same were<\/p>\n
     rejected. The enquiry was concluded with undue haste and in<\/p>\n
     absence of advocate to represent him, the petitioner did not get<\/p>\n
     proper opportunity. He places reliance upon the judgment of the<\/p>\n
     Gujarat High Court in the case of Meeta J. Mehta (Smt.) vs.<\/p>\n
     Valsad-Dang Gramin Bank & Anr., reported at 1996 II CLR 587.\n<\/p>\n
     He further states that the charge was for supplying a chit<\/p>\n
     (copying material) to one student Shri Atul Bang, & said student<\/p>\n
     was not examined at all in departmental enquiry and therefore,<\/p>\n
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\n                                       7<\/span>
\n     the charge cannot be treated to be proved. To point out the<\/p>\n
     effect of withholding such an important witness, Shri Saboo,<\/p>\n
     learned counsel places reliance upon the judgment of Hardwari<\/p>\n
     Lal vs. State of U.P., reported at 2000 (84) FLR 3. He invites<\/p>\n
     attention to provisions of Section 24 of the Standard Code to<\/p>\n
     show that payment of subsistence allowance is mandatory and<\/p>\n
     points out that the College Tribunal has totally lost sight of this<\/p>\n
     fact and also of the fact that it issued some directions on<\/p>\n
     8.10.1992 while disposing of earlier appeal. He states that the<\/p>\n
     order of College Tribunal suffers from non application of mind<\/p>\n
     and non payment of subsistence allowance has vitiated the<\/p>\n
     enquiry.    He further invites attention to Enquiry Report<\/p>\n
     particularly page 23 thereof and points out from para 13 that the<\/p>\n
     petitioner on number of occasions asked for copies of University<\/p>\n
     orders and also requested Enquiry Officer to direct management<\/p>\n
     to pay subsistence allowance but then that request was rejected<\/p>\n
     by erroneously stating that documents were not relevant.                   As<\/p>\n
     documents were not supplied, the petitioner could not conduct<\/p>\n
     cross examination effectively. Lastly, he argues that the entire<\/p>\n
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\n                                        8<\/span>
\n     service record of the petitioner is clean and unblemished except<\/p>\n
     for present misconduct. He urges that misconduct has also not<\/p>\n
     been proved conclusively & in such circumstances inflicting<\/p>\n
     punishment of civil death upon the petitioner is totally arbitrary<\/p>\n
     and a disproportionate punishment. Upon instructions, he states<\/p>\n
     that the petitioner is ready to forgo back wages or some part of<\/p>\n
     his wages if he is to be reinstated.\n<\/p>\n
     5.        Shri Kaptan, learned counsel for respondents No. 1 & 2<\/p>\n
     relies upon the very same provision of Standard Code in order to<\/p>\n
     demonstrate that Incharge Principal possesses power and<\/p>\n
     authority to issue charge sheet and even to appoint Enquiry<\/p>\n
     Officer or to impose punishment.         He invites attention to<\/p>\n
     judgment of this Court in the case of Hyderabad (Sind) vs. Nisha<\/p>\n
     Rajput, reported at 2004(1) Bom. C.R. 756, to state that in view<\/p>\n
     of provisions of Rule 44A(1), the Incharge Principal could have<\/p>\n
     inflicted such punishment.     He further states that as Incharge<\/p>\n
     Principal was competent to appoint Class III and Class IV<\/p>\n
     servants, the petitioner being class III servant, in view of the<\/p>\n
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\n                                       9<\/span>
\n     judgment of the Hon’ble Apex Court in the case of Director<\/p>\n
     General, ESI vs. T. Abdul Razak, reported at (1996) 4 SCC 708,<\/p>\n
     the Incharge Principal was also a Disciplinary Authority and<\/p>\n
     hence objection to his competency as such is misconceived.\n<\/p>\n
     About subsistence allowance, he argues that by earlier order of<\/p>\n
     College Tribunal dated 08.10.1992, the petitioner was directed to<\/p>\n
     be reinstated and accordingly he was reinstated and fresh charge<\/p>\n
     sheet was issued and enquiry was conducted when he was in<\/p>\n
     service. He, therefore, states that there was no question of paying<\/p>\n
     any subsistence allowance. He also points out that as per said<\/p>\n
     order, the question of payment of subsistence allowance was to<\/p>\n
     be considered after the departmental enquiry was over as per<\/p>\n
     findings recorded therein and its conclusion. He points out that<\/p>\n
     in any case non payment of subsistence allowance by itself cannot<\/p>\n
     vitiate departmental enquiry.     He places reliance upon the<\/p>\n
     judgment of the Hon’ble Apex Court in the case of U.P. State<\/p>\n
     Textile Corporation Ltd. vs. P.C. Chaturvedi, reported at (2005) 8<\/p>\n
     SCC 211. The very same judgment is relied upon by him to urge<\/p>\n
     that mere non supply of documents cannot have the effect of<\/p>\n
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\n                                            10<\/span>
\n     vitiating departmental enquiry until and unless the documents<\/p>\n
     demanded for and denied are shown to be relevant. He argues<\/p>\n
     that in present case, the documents have not been shown as<\/p>\n
     relevant at all.    He further relies upon the judgment of the<\/p>\n
     Hon’ble Apex Court in the case of Indian Institute of Technology<\/p>\n
     vs. Union of India, reported at 1991 Supp. (2) SCC 12, to state<\/p>\n
     that denial of legal practitioner in present circumstances is not<\/p>\n
     fatal at all.\n<\/p>\n
                     He places reliance upon the provisions of Rule<\/p>\n
     46(4)(c) to urge that in view thereof, the request for engagement<\/p>\n
     of lawyer as defence assistant has rightly not been entertained.\n<\/p>\n
     Lastly, he argues that the competency of Incharge Principal or<\/p>\n
     defences sought to be raised by the petitioner in present matter<\/p>\n
     already stand foreclosed in view of earlier adjudication and order<\/p>\n
     of College Tribunal dated 8.10.1992. He, therefore, prays for<\/p>\n
     dismissal of writ petition.\n<\/p>\n
     6.        The      charge     sheet   issued     to     the     petitioner        on<\/p>\n
     19.11.1992 is signed by the Incharge Principal and he has stated<\/p>\n
     that he as Incharge Principal and as Disciplinary Authority<\/p>\n
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\n                                     11<\/span>
\n     propose to hold departmental enquiry. In that capacity only, he<\/p>\n
     appointed Advocate Thakre as Enquiry Officer and also inflicted<\/p>\n
     major penalty of dismissal.    In the order of dismissal dated<\/p>\n
     17.6.1993, he mentions that Enquiry Officer submitted his report<\/p>\n
     on 6.4.1993 and Disciplinary Authority has considered that report<\/p>\n
     and agreed with the findings of Enquiry Officer and came to the<\/p>\n
     conclusion that major penalty was necessary as per Rule 47(2) of<\/p>\n
     Standard Code. Then it mentions that show cause notice was<\/p>\n
     given to the petitioner thereafter, who submitted his reply and<\/p>\n
     thereafter again Disciplinary Authority has applied its mind and<\/p>\n
     then placed it before the President of the Shivaji Education<\/p>\n
     Society, Amravati. The President and Chairman of local Managing<\/p>\n
     Committee considered the case on merits and also found the<\/p>\n
     petitioner guilty for misconduct and ordered dismissal of the<\/p>\n
     petitioner. Then Incharge Principal has mentioned that he in the<\/p>\n
     capacity as Incharge Principal of College and Appointing<\/p>\n
     authority of the petitioner, with the approval of the President of<\/p>\n
     Shivaji Education Society, awarded major penalty of dismissal.\n<\/p>\n
     Reading of rule of this Standard Code does not show that<\/p>\n
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\n                                      12<\/span>
\n     Incharge Principal was not the Disciplinary Authority. It has not<\/p>\n
     been shown to this Court that there was any other Disciplinary<\/p>\n
     authority in the field. The provisions of Standard Code i.e. the<\/p>\n
     Maharashtra    Non-    Agricultural   Universities       and      Affiliated<\/p>\n
     Colleges Standard Code (Terms and Conditions of Service of Non-\n<\/p>\n
     Teaching Employees) Rules, 1984, relied upon by both the<\/p>\n
     advocates show that Rule 2(3) defines “Appointing Authority” as<\/p>\n
     the authority competent to make appointments. It further<\/p>\n
     prescribes that the Appointing Authority for the affiliated colleges<\/p>\n
     shall be the management of the college or the authorities<\/p>\n
     specified by the management as per its constitution. Sub-rule (6)<\/p>\n
     defines “Competent Authority” to mean Competent Authority to<\/p>\n
     exercise different powers in the non-Agricultural Universities Acts<\/p>\n
     and in the rules specified therein. The Disciplinary Authority has<\/p>\n
     not been separately defined but then sub-rule (23) defines<\/p>\n
     “Management” to mean trustees or the managing or governing<\/p>\n
     body by whatever name called.              Rule 3(2) deals with<\/p>\n
     appointments and vide clause (c), it stipulates that all<\/p>\n
     appointments including officiating temporary appointments in<\/p>\n
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\n                                      13<\/span>
\n     Class III and IV shall be made by the Registrar or the Principal.\n<\/p>\n
     Thus, as per this provision, Principal is the Appointing Authority.\n<\/p>\n
     Petitoner has not pointed out any provision or clause from<\/p>\n
     constitution of the trust\/institute owning the college to indicate<\/p>\n
     that any other authority or person is prescribed as Disciplinary<\/p>\n
     Authority.\n<\/p>\n
     7.<\/p>\n
                  The provisions of Rule 42 defines “Misconduct” and<\/p>\n
     Rule 43 prescribes “Penalties” therefor. The penalties are divided<\/p>\n
     into “minor” and “major” penalties as mentioned in sub-rule (1)<\/p>\n
     of rule 43. Dismissal from service which disqualify for future<\/p>\n
     employment under the University or the College, is a major<\/p>\n
     penalty as mentioned in sub-rule (b)(v). Rule 44A then deals<\/p>\n
     with “Disciplinary Authorities” and its sub-rule (1) states that<\/p>\n
     Competent Authority may impose any of the penalties laid down<\/p>\n
     in rule 43 on any the employee. However, the entire Standard<\/p>\n
     Code nowhere discloses which is this Competent Authority in the<\/p>\n
     sense as urged by the petitioner.      Sub-rule (2) thereafter is<\/p>\n
     without prejudice to the provisions of sub-rule (1) and it<\/p>\n
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\n                                      14<\/span>
\n     authorizes the Appointing Authorities to impose any of these<\/p>\n
     penalties specified in Rule 43 upon members of class III and Class<\/p>\n
     IV serving under them. But then there is also a proviso to this<\/p>\n
     sub-rule (2) and it states that Principal of an affiliated college<\/p>\n
     shall exercise the powers of imposing minor penalties on Class III<\/p>\n
     and IV employees under their administrative controls.                 It is,<\/p>\n
     therefore, apparent that Class III and Class IV employees<\/p>\n
     contemplated by this proviso are not the employees in relation to<\/p>\n
     whom Principal is the Appointing Authority.            Need for such<\/p>\n
     proviso becomes apparent from clause 5 and 6 of Form No.5<\/p>\n
     appended to College       Code which prescribes             duties and<\/p>\n
     responsibility of the Registrar of Universities.       Thus, not only<\/p>\n
     Appointing   Authority    but   also   authority        under        whose<\/p>\n
     administrative control the employee is actually placed at the<\/p>\n
     relevant time, has been given power to impose minor penalties if<\/p>\n
     such employee is from class III or Class IV cadre. In other words,<\/p>\n
     in view of Rule 44A, Principal becomes the Disciplinary Authority<\/p>\n
     for the petitioner.   Rule 46 then deals with procedure for<\/p>\n
     imposing major penalty and it again uses the word Competent<\/p>\n
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\n                                      15<\/span>
\n     Authority.     Rule 46(1) permits Competent Authority to hold<\/p>\n
     enquiry either itself or to appoint an authority to inquire into the<\/p>\n
     truth of imputation of misconduct.      Rule 46(2) then uses the<\/p>\n
     word Disciplinary authority and it states that when it is proposed<\/p>\n
     to hold enquiry against the employee, Disciplinary authority shall<\/p>\n
     draw up or cause to be drawn up the substance of imputation etc.<\/p>\n
     It is obvious that in view of the proviso which has been enacted to<\/p>\n
     Rule 44A(2), this rule 46(2) instead of using word Competent<\/p>\n
     Authority uses the word Disciplinary Authority. However, from<\/p>\n
     reading of provisions of Rule 44A and Rule 46 together, it is clear<\/p>\n
     that in cases like that of present petitioner, Competent Authority<\/p>\n
     and Disciplinary Authority is one and the same.\n<\/p>\n
     8.           The contention of learned counsel for the petitioner<\/p>\n
     that Incharge Principal is not Competent Authority and<\/p>\n
     Disciplinary Authority, cannot be accepted. It is apparent that<\/p>\n
     when there is no Principal, the Incharge or officiating<\/p>\n
     arrangement is made for all legal and practical purposes. Insofar<\/p>\n
     as the administration is concerned, such person is actually a<\/p>\n
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\n                                       16<\/span>
\n     Principal and in view of provisions of Rule 44A read with Section<\/p>\n
     46, Incharge Principal is Disciplinary Authority and hence, a<\/p>\n
     Competent Authority. The definition of Competent Authority is<\/p>\n
     general one & depending upon the function required to be<\/p>\n
     discharged, the Competent Authority is bound to vary. It is clear<\/p>\n
     that Standard Code does not specify any particular or fixed<\/p>\n
     authority as Competent Authority for entire Code or the<\/p>\n
     Universities Act.\n<\/p>\n
     9.        Insofar as prayers made by the petitioner for change of<\/p>\n
     Inquiry Officer are concerned, the perusal of applications made<\/p>\n
     by him for that purpose (annexed with writ petition) show trivial<\/p>\n
     events as reason therefor. In the application dated 5.3.1993, it is<\/p>\n
     mentioned that Enquiry Officer told him that if the petitioner was<\/p>\n
     not ready to participate in the enquiry he would proceed ex parte<\/p>\n
     and that he was throwing all applications filed by the petitioner<\/p>\n
     in dustbin and he (Enquiry Officer) had no answer to give. The<\/p>\n
     petitioner has also given copy of this application to Police Station.\n<\/p>\n
     However, it is difficult to accept that because of such conduct of<\/p>\n
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\n                                      17<\/span>
\n     Enquiry Officer, the petitioner was frightened.                    He has<\/p>\n
     immediately given police complaint and he has also given copy<\/p>\n
     thereof to the Enquiry Officer, to management and also to College<\/p>\n
     Tribunal. On 11.3.1993, he has contended in his application that<\/p>\n
     Enquiry Officer and Incharge Principal were colluding together<\/p>\n
     and taking down statements of witnesses as they wished.\n<\/p>\n
     However, again the allegation is extremely vague to deserve any<\/p>\n
     credence. Who was the witness in dock at that time, what was<\/p>\n
     the question put to him, what was the reply given by him and<\/p>\n
     how it was recorded by the Enquiry Officer, is nowhere pointed<\/p>\n
     out.   His other applications are also on these lines and only<\/p>\n
     conclusion that can be drawn from such applications is that the<\/p>\n
     petitioner,   who   was   reinstated   during     the pendency              of<\/p>\n
     departmental enquiry because of order of College Tribunal dated<\/p>\n
     8.10.1992, wanted to prolong the proceedings.\n<\/p>\n
     10.       This also becomes clear from his insistence for payment<\/p>\n
     of subsistence allowance.    Though College Tribunal has while<\/p>\n
     considering this grievance in the impugned order has overlooked<\/p>\n
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\n                                      18<\/span>
\n     its earlier order dated 8.10.1992, I find that it has not materially<\/p>\n
     affected the conclusion reached by the College Tribunal. While<\/p>\n
     disposing of earlier appeal i.e. Appeal No. A\/6\/90 on 8.10.1992,<\/p>\n
     the College Tribunal directed the management to reinstate the<\/p>\n
     petitioner within 10 weeks’ from its order. It also directed that<\/p>\n
     enquiry should be completed within three months thereof. It<\/p>\n
     ordered that if the departmental enquiry was not started after<\/p>\n
     reinstatement or completed within time limit specified by it, or if<\/p>\n
     the petitioner was exonerated from charges, on conclusion of<\/p>\n
     such enquiry, he would be paid arrears of emoluments on the<\/p>\n
     basis of his full pay and allowances from the date he was put<\/p>\n
     under suspension. Thus, the College Tribunal was alive to the<\/p>\n
     fact that the employee reinstated by it was under suspension<\/p>\n
     earlier and had not received complete salary but then made<\/p>\n
     payment thereof or of balance salary to him dependent upon the<\/p>\n
     result of departmental enquiry. This order dated 8.10.1992 was<\/p>\n
     accepted and acted upon by the petitioner as also by the<\/p>\n
     management. The judgment of the Hon’ble Apex Court in the<\/p>\n
     case of U.P. State Textile Corporation Ltd. vs. P.C. Chaturvedi,<\/p>\n
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\n                                        19<\/span>
\n     (supra), clearly shows that non payment of Subsistence allowance<\/p>\n
     by itself is not sufficient to hold that enquiry is vitiated. Here, the<\/p>\n
     charge sheet itself was issued after the petitioner was reinstated<\/p>\n
     i.e. on 19.11.1992 and the entire enquiry was conducted when<\/p>\n
     the petitioner was in service. Thus, he was receiving full salary<\/p>\n
     till his dismissal from service vide order dated 17.6.1993. There<\/p>\n
     is no question of management paying him any subsistence<\/p>\n
     allowance after his reinstatement and during the pendency of this<\/p>\n
     departmental enquiry.      It is obvious that the petitioner was<\/p>\n
     making grievance about non payment of subsistence allowance<\/p>\n
     before his first dismissal on 29.9.1990. That dismissal was set<\/p>\n
     aside on 8.10.1992 and therefore non payment of subsistence<\/p>\n
     allowance during that period has no bearing upon the<\/p>\n
     departmental enquiry which was initiated by serving upon him a<\/p>\n
     charge sheet dated 19.11.1992.\n<\/p>\n
     11.        The grievance that the documents were not supplied to<\/p>\n
     the petitioner appears to be only a tactic to delay departmental<\/p>\n
     enquiry. The documents demanded by him are copies of some<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                      20<\/span>
\n     University orders and during arguments Adv. Saboo has been<\/p>\n
     invited attention to entries at Sr. Nos. 8, 9 and 10 in para 13 of<\/p>\n
     the Enquiry Report. Entry Nos. 8 and 10 are in relation to some<\/p>\n
     document i.e. copies of University Orders while entry No. 9 is<\/p>\n
     about demand of subsistence allowance within 48 hours. What<\/p>\n
     was the relevance of University orders on misconduct committed<\/p>\n
     by the petitioner for which he was departmentally tried is<\/p>\n
     nowhere disclosed or commented upon. Even during arguments,<\/p>\n
     the nature of those documents or there relevance for the purposes<\/p>\n
     of defence of the petitioner has not been demonstrated. In U.P.\n<\/p>\n
     State Textile Corporation Ltd. vs. P.C. Chaturvedi (supra), the<\/p>\n
     Hon’ble Apex Court has held that employee has to point out and<\/p>\n
     prove prejudice caused to him because of non supply of such<\/p>\n
     documents. Thus, non supply of documents ipso facto is held to<\/p>\n
     be not sufficient to vitiate the enquiry. Same view is taken by the<\/p>\n
     Hon’ble Apex Court while narrating the circumstances in which<\/p>\n
     departmental enquiry can be held to be vitiated in its judgment in<\/p>\n
     the case of State Bank of Patiala vs. S.K. Sharma, reported at<\/p>\n
     (1996) 3 SCC 364.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                         21<\/span><\/p>\n
     12.       The contention that there was no permission given to<\/p>\n
     engage advocate and rejection was wrongful, is again without<\/p>\n
     any substance. Here, only Enquiry Officer was an advocate while<\/p>\n
     the presenting officer was Lecturer from the very same College.\n<\/p>\n
     The provisions of Rule 46(4)(c) permits Disciplinary Authority to<\/p>\n
     appoint Enquiry Officer and at the same time to appoint any<\/p>\n
     employee or legal practitioner as Presenting Officer to present the<\/p>\n
     case in support of articles of charge.      Said sub-rule (c) also<\/p>\n
     mentions that the employee can take assistance of any other<\/p>\n
     employee to represent the case on his behalf but he may not<\/p>\n
     engage legal practitioner unless the Presenting Officer is a legal<\/p>\n
     practitioner   or   Disciplinary   Authority    having        regard        to<\/p>\n
     circumstances, permit him to engage legal practitioner. Thus, in<\/p>\n
     present facts, the Presenting Officer was not legal practitioner. In<\/p>\n
     view of this provision, the petitioner could not have engaged<\/p>\n
     legal practitioner as defence representative. It is no doubt true<\/p>\n
     that he wanted to engage legal practitioner to assist him but then<\/p>\n
     he has not pointed out as to why such assistance of legal<\/p>\n
     practitioner was essential.   The charge was only of supplying<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                     22<\/span>
\n     copies of answers to certain questions during third year B. Arch.\n<\/p>\n
     Examination during 1990 Amravati University Examination and<\/p>\n
     defame higher authorities.     The petitioner has in fact cross<\/p>\n
     examined three of the witnesses examined by the management in<\/p>\n
     support of the charge.    Either in appeal memo or before this<\/p>\n
     Court, he has not demonstrated what prejudice he faced while<\/p>\n
     conducting this cross examination or then why he did not cross<\/p>\n
     examine remaining three witnesses. Even in his applications, he<\/p>\n
     has not given any justifiable excuses for seeking assistance of<\/p>\n
     legal practitioner. The judgment of the Hon’ble Apex Court in the<\/p>\n
     case of Indian Institute of Technology vs. Union of India (supra)<\/p>\n
     shows that when the delinquent        employee there (Lecturer)<\/p>\n
     instead of submitting application for permission to engage lawyer<\/p>\n
     to Disciplinary Authority moved the same before the Enquiry<\/p>\n
     Officer, summary rejection of his application by Enquiry Officer<\/p>\n
     would not vitiate the enquiry. In paragraph 5, the Hon’ble Apex<\/p>\n
     Court has considered the provisions of Rule 14(8)(a) of the<\/p>\n
     Central Civil Services (Classification, Control and Appeal) Rules,<\/p>\n
     1965, which is more or less pari materia with Rule 46(4)(c) and<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                      23<\/span>
\n     found that when Presenting Officer was not legal practitioner,<\/p>\n
     there was no question of blaming Enquiry Officer in these<\/p>\n
     circumstances. In AIR 1983 S.C. 109 “Board of Trustees of the<\/p>\n
     Port of Bombay v. Dilipkumar Raghavendranath Nadkarni<\/a>“, Hon.<\/p>\n
     Apex Court holds that where in an enquiry before a domestic<\/p>\n
     tribunal the delinquent officer is pitted against a legally trained<\/p>\n
     mind, if he seeks permission to appear through a legal<\/p>\n
     practitioner the refusal to grant this request would amount to<\/p>\n
     denial of a reasonable request to defend himself and the essential<\/p>\n
     principles of natural justice would be violated. Hon. Apex Court<\/p>\n
     in Crescent Dyes and Chemicals Ltd v. Ram Naresh Tripathi,<\/a><\/p>\n
     (1993) 2 SCC 115 : (1993 AIR SCW 1106), laid down that the<\/p>\n
     right to be represented in the departmental proceedings initiated<\/p>\n
     against a delinquent employees can be regulated or restricted by<\/p>\n
     the management or by the Service Rules. It was held that the<\/p>\n
     right to be represented by an advocate in the departmental<\/p>\n
     proceedings can be restricted and regulated by statutes or by the<\/p>\n
     Service Rules including the Standing Orders, applicable to the<\/p>\n
     employee concerned. The whole case law was reviewed by Apex<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                      24<\/span>
\n     Court in Bharat Petroleum Corporation Ltd. v. Maharashtra Genl.\n<\/p>\n
     Kamgar Union, (1999) 1 SCC 626 : (1999 AIR SCW 64), and it<\/p>\n
     was held that a delinquent employee has no right to be<\/p>\n
     represented by an advocate in the departmental proceedings and<\/p>\n
     that if a right to be represented by a co-workman is given to him,<\/p>\n
     the departmental proceedings would not be bad only for the<\/p>\n
     reason that the assistance of an advocate was not provided to<\/p>\n
     him.\n<\/p>\n
     13.       The last contention which needs to be considered is<\/p>\n
     non examination of the student Atul Bang. As per the charge<\/p>\n
     sheet and Enquiry Report, Atul Bang was the beneficiary and the<\/p>\n
     petitioner supplied the solutions of questions to him. It is not in<\/p>\n
     dispute that he was caught in copying the answers from carbon<\/p>\n
     copy and charge upon the petitioner was that he delivered that<\/p>\n
     carbon copy at about 6.00 PM on 26.6.1990. It is also not in<\/p>\n
     dispute that case of unfair means was registered against Atul<\/p>\n
     Bang.   It is, therefore, obvious that it was not necessary to<\/p>\n
     examine Atul Bang as witness to prove this charge. There was no<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                     25<\/span>
\n     question of Atul Bang supporting the case of the management<\/p>\n
     because that would have been against his own interest.                  It is<\/p>\n
     further obvious that if Atul Bang was to be examined in<\/p>\n
     departmental enquiry, it was for the petitioner to summon him in<\/p>\n
     his defence. I, therefore, find this ground of attack also without<\/p>\n
     any merit.\n<\/p>\n
     14.<\/p>\n
                  The punishment of dismissal from service for such<\/p>\n
     charge cannot be said to be arbitrary at all. The quantum of<\/p>\n
     punishment is to be decided by the management after considering<\/p>\n
     the gravity and nature of misconduct.       As already mentioned<\/p>\n
     above, Rule 43(1)(b)(v) enables the Disciplinary Authority to<\/p>\n
     impose punishment of dismissal from service. The procedure for<\/p>\n
     imposing major penalty has been followed as specified in rule 46<\/p>\n
     in the instant matter.    The misconduct of supplying copying<\/p>\n
     material to a student in University Examination is established<\/p>\n
     here.   The misconduct, therefore, is of serious nature and<\/p>\n
     considering the fact that the petitioner was Clerk-cum-Typist in<\/p>\n
     an Educational Institution (College), it is clear that the<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span>
\n                                          26<\/span>
\n     management was justified in treating it as grave and serious<\/p>\n
     misconduct. It brings bad name to the institution itself & it is<\/p>\n
     difficult to repose faith in such employee. The punishment of<\/p>\n
     dismissal,    therefore,   cannot   be    treated     as     unreasonable,<\/p>\n
     insufficient or unwarranted in these circumstances. I, therefore,<\/p>\n
     find that this argument about disproportionate character of<\/p>\n
     punishment also needs to be rejected.\n<\/p>\n
     15.          In these circumstances, I do not find any merit in the<\/p>\n
     petition. Writ Petition is, therefore, dismissed. However, in the<\/p>\n
     circumstances of the case, there shall be no order as to costs.\n<\/p>\n
                                                      JUDGE
\n                                     *******<\/p>\n
     *GS.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 13:54:53 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Presently Nil vs The Secretary on 26 September, 2008 Bench: B. P. Dharmadhikari 1 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-139645","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nPresently Nil vs The Secretary on 26 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/presently-nil-vs-the-secretary-on-26-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Presently Nil vs The Secretary on 26 September, 2008 - 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