{"id":178472,"date":"2008-07-03T00:00:00","date_gmt":"2008-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vaijanath-m-kalase-vs-ratnagiri-education-society-ors-on-3-july-2008"},"modified":"2016-08-09T18:18:13","modified_gmt":"2016-08-09T12:48:13","slug":"vaijanath-m-kalase-vs-ratnagiri-education-society-ors-on-3-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vaijanath-m-kalase-vs-ratnagiri-education-society-ors-on-3-july-2008","title":{"rendered":"Vaijanath M. Kalase vs Ratnagiri Education Society & Ors on 3 July, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vaijanath M. Kalase vs Ratnagiri Education Society & Ors on 3 July, 2008<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
                                  -1-\n\n\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                          CIVIL APPELLATE JURISDICTION\n                          WRIT PETITION NO.2034 OF 1997\n\n\n\n\n                                                                               \n    Vaijanath M. Kalase                                            ...Petitioner\n\n             vs.\n\n\n\n\n                                                       \n    Ratnagiri Education Society & Ors.                           ...Respondents\n\n    Mr.Sanghraj D. Rupwate with Mr.Gajanan P. Lasme for the\n    Petitioner\n\n\n\n\n                                                      \n    Mr.A.V.Bukhari with M.B.V.Bukhari for Respondent Nos.1 & 3\n    Mr.Rui Rodrigues with Mr.B.V.Phadnis for Respondent Nos.4 & 5.\n\n                                    CORAM: DR.D.Y.CHANDRACHUD,J.\n<\/pre>\n
                                    DATE : JULY 3, 2008.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
    1.      The    Petition\n                               ig impugns an order passed by              the      Presiding\n                             \n    Officer       of the College Tribunal on 9th January 1997 by                          which\n\n    the     Appeal filed by the Petitioner, questioning his dismissal\n\n<\/pre>\n
    from service on 27th September 1995, was rejected.\n<\/p>\n
    2.      The    first Respondent is a public trust registered                          under<\/p>\n
    the     Bombay      Public     Trusts    Act,1950 and        conducts          an     Arts,<\/p>\n
    Commerce and Science college at Ratnagiri.                     The Petitioner was<\/p>\n
    appointed      as        a lecturer on 7th August 1980 and was                  teaching<\/p>\n
    the     Foundation course and Rural Development.                    On 21st October<\/p>\n
    1994,     the Petitioner was suspended pending an enquiry into an<\/p>\n
    allegation          of     misconduct.    The      allegation           against          the<\/p>\n
    Petitioner       is      to   the   effect      that    while       conducting           the<\/p>\n
    Foundation       Course       for the First Year B.A.students,                  he      used<\/p>\n
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\n                                  -2-<\/span><\/p>\n
    obscene,filthy         and     abusive language towards the students                           in<\/p>\n
    the   classroom;            and     that   in    particular,          he     used        vulgar<\/p>\n
    language against women students.                  The statement of allegations<\/p>\n
    annexed to the charge was to the following effect :\n<\/p>\n
    “(1) That      you while conducting the periods of the                           Foundation<\/p>\n
          Course     of     First Year B.A.          used obscene and filthy                     and<\/p>\n
          very     abusive language like ‘Haramkhor’ and ‘Bhedrat’ and<\/p>\n
          used     other        filthy     words.    You have          also      given         wrong<\/p>\n
          teachings        to     the students of the said class                     by      saying<\/p>\n
          ‘Ram     was thief and Ravan was very decent’.                         Further         you<\/p>\n
          have     also<\/p>\n
                            made statements like ‘Brahmins are liars                             and<\/p>\n
          Haramkhor’.            You     talk mostly on irrelevant                 things        not<\/p>\n
          concerning        with        the syllabus.       These above            facts        have<\/p>\n
          been     recorded        in     a statement by a           student         Shri       Mane<\/p>\n
          Suryakant Vinay of First Year B.A.                     on 28-9-1994.\n<\/p>\n
    (2)   That you intentionally use very obscene and vile language<\/p>\n
          without     bothering          that there are lady students                     in     the<\/p>\n
          class.      You        used     words     like    ‘Nalayak’           and       ‘Bajari’<\/p>\n
          (having     low        character) to the lady students.                      You      have<\/p>\n
          asked     the     lady students to get out of the                      class.          You<\/p>\n
          also     insult the parents of the students by using abusive<\/p>\n
          language.\n<\/p>\n
    .     The above facts have been recorded in a Statement made by<\/p>\n
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\n                                  -3-<\/span><\/p>\n
          Kum.         Deorukhakar Aruna Pandurang of the First Year B.A.\n<\/p>\n
          Class on 28-9-1994.\n<\/p>\n
    (3)   That     your        behaviour       at   the time of        teaching         to     the<\/p>\n
          students        in the class is very indecent and vulgar.                           That<\/p>\n
          the     lady        students     feel ashamed to sit            in     your        class<\/p>\n
          because        of your misconduct and misbehaviour and                        because<\/p>\n
          of     the     language        you    use for the      lady       students          like<\/p>\n
          ‘Nalayak’, ‘Bajari’ etc.<\/p>\n
    .     The     above facts have been recorded in statement made                               by<\/p>\n
          Kum.         Ghag<\/p>\n
                                Aruna Shrikant a student of First Year                        B.A.\n<\/p>\n
          on 28-9-1994.\n<\/p>\n
    (4)   That     at the time of conducting the Classes you refer                               to<\/p>\n
          the parents of the students and use insulting and abusive<\/p>\n
          language        without      caring       that there are          lady      students<\/p>\n
          attending to the lectures.\n<\/p>\n
    .     The     above facts have been recorded in a Statement                             given<\/p>\n
          by     Shri Damle Makarand Prabhakar of First Year B.A.                                on<\/p>\n
          28-9-1994.\n<\/p>\n
    (5)   That the language you use in the Class is very vulgar and<\/p>\n
          cheap        which     would make any lady student                attending          the<\/p>\n
          class feel ashamed.             You get annoyed if any student tells<\/p>\n
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\n                                  -4-<\/span><\/p>\n
          you     that what you said is wrong to which in turn you say<\/p>\n
          that     “if     you are a legal child of your parents and                           you<\/p>\n
          know     who     your     parents are, get up to prove that                      I    am<\/p>\n
          wrong”.         You also give wrong teaching to the students of<\/p>\n
          the     class, by saying that “Shivaji was very unjust and a<\/p>\n
          partial ruler and he harassed the backward class.”\n<\/p>\n
    .     These     facts        have been recorded in a statement                   made       by<\/p>\n
          Kum.     Shetye Swati Vijay a student of First Year B.A.                              on<\/p>\n
          10-10-1994.\n<\/p>\n
    (6)   That     you\n                           \n                           while       teaching   the    subject         give        insulting\n\n          references        of     Prabhu    Ram, Shrikrishna and               to     Shivaji\n                          \n          Maharaj.        That the language you use is vulgar and abusive\n\n<\/pre>\n
          and that there is always tension and fear in the minds of<\/p>\n
          the     students when they attend your lectures.                        That       when<\/p>\n
          some     of the lady students of the First Year B.Sc.                            Class<\/p>\n
          tried     to tell you not to make such indecent                       statements,<\/p>\n
          you     instead        used very abusive language in a very                      cheap<\/p>\n
          manner     and     you not only insulted the lady students                           but<\/p>\n
          also     made     insulting statements to the parents of                         these<\/p>\n
          lady     students.           The words and language used by                  you      is<\/p>\n
          such that even a peon would not utter such words.                              Due to<\/p>\n
          this behaviour of yours the students avoid to attend your<\/p>\n
          lectures because your teachings as it is, are not related<\/p>\n
          to     the subject in any way.          But only filthy and indecent<\/p>\n
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\n                                -5-<\/span><\/p>\n
          statements are made by you in the Class.\n<\/p>\n
    .     These     facts      have been recorded in a statement given                          by<\/p>\n
          Kum.Kokate Ashwini Vijay a student of First Year B.Sc.\n<\/p>\n
    (7)   That     the     words     used   by    you are       so     dirty        and      most<\/p>\n
          shameful,       that     you call the students as thieves.                         That<\/p>\n
          you     call the lady students Nalayak and that they sit                              in<\/p>\n
          the     Class and have got no shame for the same.                         You      also<\/p>\n
          make     such statements like saying that the parents of the<\/p>\n
          students       are thieves and beggars and your teachings                           and<\/p>\n
          the words used by you are filthy and cheap.\n<\/p>\n
    .     The     facts have been recorded by statements given by                             (1)<\/p>\n
          Shri     Ambre Shivaji Bhikaji, student of First Year B.Com.\n<\/p>\n
          (2)     Shri     Dalvi     Santosh Vasant, Student of                 First        Year<\/p>\n
          B.Com.         (3)   Shri Chalke Uday Sitaram, student of                         First<\/p>\n
          Year     B.Com.        Hence, your behaviour and conduct                     in     the<\/p>\n
          class     while teachings to the students is in violation of<\/p>\n
          the     Code of Conduct more particular described in Statute<\/p>\n
          No.439     (9a)      (ii) and (b), of the Statutes framed                         under<\/p>\n
          the Bombay University Act,1974.”\n<\/p>\n
    3.     The    Petitioner       denied        the   charges.          The      management<\/p>\n
    appointed      an advocate as Enquiry Officer.                   During the           course<\/p>\n
    of    enquiry,       the petitioner was permitted to                 be     represented<\/p>\n
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\n                                    -6-<\/span><\/p>\n
    through     a     representative            of   his      choice        namely,         by       a<\/p>\n
    teacher\/office        bearer         of    the Association.             The      management<\/p>\n
    examined five witnesses all of them being students who deposed<\/p>\n
    about     the     nature        of the behaviour of the                Petitioner          while<\/p>\n
    conducting         his         classes.       Upon     the     conclusion           of        the<\/p>\n
    disciplinary enquiry, the Enquiry Officer entered a finding of<\/p>\n
    misconduct      in       respect       of two of the charges.                 The     Enquiry<\/p>\n
    Officer     held      that       the Petitioner had violated the                    code       of<\/p>\n
    conduct.        He held that the misbehaviour of the petitioner was<\/p>\n
    derogatory      to       the     status and dignity of             a     teacher,          which<\/p>\n
    amount     to     moral turpitude.           The Enquiry Officer came to                      the<\/p>\n
    conclusion that the charge of wilful and persistent negligence<\/p>\n
    of    duty was not proved.                Following the report of the                 Enquiry<\/p>\n
    Officer,     the petitioner came to be dismissed from service                                  on<\/p>\n
    25th September 1995.\n<\/p>\n
    4.    The order of dismissal was challenged by the Petitioner in<\/p>\n
    an    appeal before the College Tribunal.                    By the order which is<\/p>\n
    impugned     in      this       proceeding, the Presiding Officer                     of      the<\/p>\n
    University      and      College Tribunal came to the conclusion                             that<\/p>\n
    the     enquiry was proper and the charge against the                            respondent<\/p>\n
    was duly established.                However, having regard to the fact that<\/p>\n
    the     petitioner       was      in      service since 1980 as             a    full        time<\/p>\n
    lecturer, and that he belongs to a Nomadic Tribe and since the<\/p>\n
    order of dismissal would result in a loss of service benefits,<\/p>\n
    the Tribunal substituted the order of dismissal by an order of<\/p>\n
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\n                                     -7-<\/span><\/p>\n
    compulsory         retirement.         During the pendency of the                    petition,<\/p>\n
    the petitioner has received the benefit of ad hoc pension.\n<\/p>\n
    5.      The challenge to the order of the University and                                  College<\/p>\n
    Tribunal,       in the submissions which have been urged before the<\/p>\n
    Court     has       been     on    the following         counts;            (i)     The     first<\/p>\n
    submission         is     that the Enquiry Officer had resigned on                            20th<\/p>\n
    February       1995       but     on a resolution passed by                 the      Governing<\/p>\n
    Council       on     3rd March 1995, he was persuaded to continue                              the<\/p>\n
    enquiry.           The     submission        is   that      the      petitioner            had     a<\/p>\n
    reasonable         apprehension         that the Enquiry Officer was                      biased<\/p>\n
    and     the     enquiry
\n                                ig  stands vitiated on that              ground.          (ii)       No<\/p>\n
    permission         was given to the petitioner to engage an advocate;\n<\/p>\n
    (iii)     The       defence representative defended the petitioner                               by<\/p>\n
    cross     examining         two       witnesses.      During         the      enquiry,         the<\/p>\n
    defence       representative           had    indicated that he               had     received<\/p>\n
    threats       for        defending      the petitioner and he did                   not     cross<\/p>\n
    examine the remaining three witnesses (the remaining witnesses<\/p>\n
    were     cross examined by the petitioner);                      (iv) The enquiry was<\/p>\n
    vitiated       by        malafides – the petitioner was the                    senior         most<\/p>\n
    amongst       reserved       category        candidates        and      had       worked       for<\/p>\n
    fourteen       years       without any grievance.              He was victimised                 in<\/p>\n
    order     to obstruct his chance of being promoted as the Head of<\/p>\n
    the     institution         and       (v) In the year 2001,             a     fact        Finding<\/p>\n
    Committee       of the University of Mumbai primafacie came to                                 the<\/p>\n
    conclusion         that     the petitioner had suffered at the hands                             of<\/p>\n
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\n                                -8-<\/span><\/p>\n
    the    management       and directed the management to reinstate                         him<\/p>\n
    subject       to the order that may be passed in these proceedings.\n<\/p>\n
    (vi)     The     charges levelled against the petitioner                     are      vague<\/p>\n
    because       the    particulars of the date, month or time when                         the<\/p>\n
    obscene       words were used are not given.             (vii) The           punishment<\/p>\n
    of dismissal from service is disproportionate.\n<\/p>\n
    6.      Each     of the submissions now fall for determination.                            At<\/p>\n
    the     appropriate      stage, the defence which has been raised                          on<\/p>\n
    behalf of the Respondent-management would be considered.\n<\/p>\n
    7.<\/p>\n
            At the outset, it needs to be noted that in January 1995,<\/p>\n
    the     petitioner      had    instituted a writ petition                before         this<\/p>\n
    court     under      Article     227   of     Constitution        of     India        (Writ<\/p>\n
    Petition       No.419 of 1995) in order to challenge (i) The                          order<\/p>\n
    of     suspension dated 21st October 1994, (ii) The charge                            sheet<\/p>\n
    dated     4th       December 1994;     and (iii) The order passed by                     the<\/p>\n
    Enquiry       Officer on 13th January 1995 declining permission                            to<\/p>\n
    the     petitioner      to be represented by an Advocate                   during        the<\/p>\n
    course     of       enquiry.     The   writ     petition       was      dismissed          as<\/p>\n
    withdrawn.       The withdrawal of the writ petition would preclude<\/p>\n
    the     petitioner from questioning the legitimacy of the                           charge<\/p>\n
    sheet on the ground of vagueness and from urging the objection<\/p>\n
    that     he     was not permitted to be represented by an                      advocate.\n<\/p>\n
    Both     these      grounds    were available when           he     instituted           the<\/p>\n
    earlier       proceeding and there was a specific challenge to                           the<\/p>\n
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\n                                      -9-<\/span><\/p>\n
    legality      of      the charge sheet as well as the decision not                                to<\/p>\n
    allow     him      to be represented by an advocate.                       That       challenge<\/p>\n
    came     to     an     end       upon the withdrawal            of    the       earlier        writ<\/p>\n
    petition.\n<\/p>\n
    8.      Quite        apart       from the impact of the              withdrawal          of     the<\/p>\n
    earlier proceeding in this court, there is no substance in the<\/p>\n
    challenge that the charge-sheet was vague or in the allegation<\/p>\n
    that     there       was     a     violation of the          principles           of     natural<\/p>\n
    justice on account of the denial by the Enquiry Officer to the<\/p>\n
    petitioner of an opportunity to be represented by an advocate.\n<\/p>\n
    In so far as vagueness of the charge is concerned, it is clear<\/p>\n
    from     a    reading of the charge sheet that the                         petitioner           was<\/p>\n
    placed       on notice that the enquiry related to his misbehaviour<\/p>\n
    while     conducting         classes        and arose out            of    the      derogatory<\/p>\n
    language         that       was     used    by     him     against          the        students,<\/p>\n
    particularly          in respect of women students.                     The statements of<\/p>\n
    students      were         referred     to in the statement                of     allegations<\/p>\n
    together      with         the     dates    on    which      those        statements           were<\/p>\n
    recorded.          The obscene words which were allegedly used by the<\/p>\n
    petitioner           were        adverted    to    in     the        chargesheet.               The<\/p>\n
    petitioner         was given notice of the nature of enquiry and                                the<\/p>\n
    allegations           of     misconduct.          During        the       course       of       the<\/p>\n
    proceeding         before        the Enquiry Officer on 11th January                         1995,<\/p>\n
    the     petitioner          stated that he had understood the                       nature        of<\/p>\n
    allegations and the charges levelled against him and proceeded<\/p>\n
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\n                                    -10-<\/span><\/p>\n
    thereafter          to    deny the charges.       The enquiry            Officer         noted<\/p>\n
    that     the       petitioner       had     filed a reply       of      fourteen          pages<\/p>\n
    denying the charges.               In the circumstances, it is not possible<\/p>\n
    to     accede       to the contention that the charges were vague                           and<\/p>\n
    that the enquiry stood vitiated on that ground.\n<\/p>\n
    9.      The     petitioner         was    permitted to be         represented            by     a<\/p>\n
    defence       representative          of his choice viz;            Shri      V.B.Rokade,<\/p>\n
    who     was a member of the teaching staff in the institution and<\/p>\n
    the     office bearer of the teachers’ association.                         There is          no<\/p>\n
    absolute rule of law by which an opportunity to defend oneself<\/p>\n
    requires<\/p>\n
                   assistance necessarily of an advocate or of a person<\/p>\n
    trained       in     law.      The Presenting Officer in the present                       case<\/p>\n
    was     not     a     lawyer.      The principles of natural               justice         were<\/p>\n
    complied       with       by     permitting     the   petitioner           to     have        the<\/p>\n
    assistance of a defence representative who was a teacher and a<\/p>\n
    member\/office bearer of the teachers’ association.\n<\/p>\n
    9A.      But        the   submission        which is urged on           behalf       of       the<\/p>\n
    Petitioner          is    that     during the course of           the      enquiry,         the<\/p>\n
    defence       representative          had     addressed     a     letter        dated       9th<\/p>\n
    February       1995 to the Principal of the college recording                              that<\/p>\n
    he     had     received        a   telephone call at the             premises        of       the<\/p>\n
    college       warning him against the consequences of defending the<\/p>\n
    petitioner at the enquiry.                  It was urged that as a result, the<\/p>\n
    defence       representative would have been under a sense of                              fear<\/p>\n
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\n                                       -11-<\/span><\/p>\n
    which would result in a violation of natural justice.\n<\/p>\n
    10.     Having perused with the assistance of the learned counsel<\/p>\n
    appearing for the parties, the entire record of the enquiry it<\/p>\n
    is     not    possible to accede to the submission of                             the      learned<\/p>\n
    counsel       for the petitioner.                  The record of the enquiry                    shows<\/p>\n
    that     after         the letter dated 9th February 1995,                        the      defence<\/p>\n
    representative              remained       present     during the            course        of     the<\/p>\n
    enquiry       when       evidence          was     being     recorded.            Two      of     the<\/p>\n
    witnesses         of     the       management were examined                by     the      defence<\/p>\n
    representative              on     6th     March     1995      and      12th      April          1995<\/p>\n
    respectively.\n<\/p>\n
                                The        evidence of the defence witness was                       also<\/p>\n
    recorded       in the examination-in-chief conducted by the defence<\/p>\n
    representative.                  The     learned counsel appearing on behalf                        of<\/p>\n
    the     petitioner           has fairly stated before the court that as                               a<\/p>\n
    matter       of    fact, no application was filed before the                               Enquiry<\/p>\n
    Officer       seeking replacement of the defence representative                                     or<\/p>\n
    for     permission to appoint a fresh defence representative.                                       It<\/p>\n
    is     evident         from the record that the                defence          representative<\/p>\n
    participated in the defence of the petitioner by attending the<\/p>\n
    enquiry       throughout.              The defence representative in fact filed<\/p>\n
    his     letter         of    authority           on 28th February          1995       after       his<\/p>\n
    earlier       letter of 9th February 1995.                     In these circumstances,<\/p>\n
    the submission that there was a violation of the principles of<\/p>\n
    natural justice cannot be accepted.\n<\/p>\n
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\n                                  -12-<\/span><\/p>\n
    11.     The principal challenge in the present case is that                               the<\/p>\n
    Enquiry Officer tendered his resignation on 28th February 1995<\/p>\n
    after     a     charge      of bias was made by the petitioner                   but       was<\/p>\n
    persuaded       by     the management to recall his resignation.                           The<\/p>\n
    learned       counsel      submitted      that consequently,             there       was      a<\/p>\n
    reasonable       apprehension         of bias on the part of              the      Enquiry<\/p>\n
    Officer       and      it was appropriate and proper that                 the      Enquiry<\/p>\n
    Officer       should       desist     from conducting the          enquiry.             While<\/p>\n
    dealing       with     this submission, it was urged on behalf of                          the<\/p>\n
    management       that no challenge to this effect has been                         pleaded<\/p>\n
    in    the      writ petition.         But that apart, it is            necessary           for<\/p>\n
    this court to scrutinise whether there is any substance in the<\/p>\n
    submission.          The     record     of the enquiry shows             that      on      8th<\/p>\n
    February       1995, the Enquiry Officer had queried the petitioner<\/p>\n
    about     the       status of the earlier writ petition which                      he      had<\/p>\n
    moved         before     this    court.      When    the      Presenting           Officer<\/p>\n
    attempted       to     make a submission, the Petitioner used                      abusive<\/p>\n
    words     against him.          The Enquiry Officer recorded the incident<\/p>\n
    and observed that the Petitioner should maintain discipline in<\/p>\n
    the     enquiry        proceeding by desisting from the use of                     abusive<\/p>\n
    language.           The Enquiry Officer warned the Petitioner that the<\/p>\n
    matter      would be referred to the Tribunal, in accordance                             with<\/p>\n
    the     governing       statute.        A complaint was also filed                 by      the<\/p>\n
    Presenting       Officer before the Enquiry Officer together with a<\/p>\n
    supporting       affidavit       and    the affidavit of           typist        who       was<\/p>\n
    present       during       the course of the enquiry.             It must be            noted<\/p>\n
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\n                                   -13-<\/span><\/p>\n
    that    after the incident of 8th February 1995, the enquiry was<\/p>\n
    reconvened       on     16th       February 1995 when           the       petitioner          was<\/p>\n
    absent     and     it was on 28th February 1995 that the                          petitioner<\/p>\n
    filed     an     application         calling upon the           Enquiry         Officer         to<\/p>\n
    refrain from acting in the proceeding.                       The Enquiry Officer in<\/p>\n
    the     course     of the proceeding recorded that he was pained                                by<\/p>\n
    the     conduct of the petitioner and the allegations which                                  were<\/p>\n
    levelled       against       him     were      untrue.        The      Enquiry         Officer<\/p>\n
    recorded       that     faced with the use of abusive language by                             the<\/p>\n
    petitioner       he had administered a warning during the course of<\/p>\n
    the enquiry calling upon the petitioner to maintain discipline<\/p>\n
    during<\/p>\n
               the conduct of the enquiry.               The Enquiry Officer noted<\/p>\n
    that     though       the allegations against him were untrue, he                             was<\/p>\n
    requesting       the     management to relieve him of the                       enquiry         by<\/p>\n
    tendering       his resignation.            On 3rd March 1995, the                  Governing<\/p>\n
    Council     passed a resolution requesting the Enquiry Officer to<\/p>\n
    continue       with     the enquiry and expressed that the                        management<\/p>\n
    had     trust and confidence in him to conduct the enquiry in                                   an<\/p>\n
    impartial       manner.        The       Enquiry    Officer         was      requested          to<\/p>\n
    proceed     with       the     enquiry      since    the      allegations            levelled<\/p>\n
    against him were baseless.                The enquiry therefore commenced on<\/p>\n
    6th     March 1995.          It is an admitted position before this court<\/p>\n
    that     the     petitioner        did      not raise      any      objection          to     the<\/p>\n
    continuation       of the enquiry and willingly participated in the<\/p>\n
    enquiry.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                  -14-<\/span><\/p>\n
    12.     The submission of the learned counsel for the petitioner<\/p>\n
    that     the Enquiry Officer should have desisted from acting                                   as<\/p>\n
    such     and that he was biased against the petitioner cannot                                   be<\/p>\n
    accepted.          The     record of the enquiry would show that at                           the<\/p>\n
    stage       when    the     petitioner obstructed the enquiry                       by     using<\/p>\n
    abusive       language      against       the Presenting Officer,                   even      the<\/p>\n
    evidence was yet to be recorded.                  Little had transpired during<\/p>\n
    the     course of the enquiry save and except for the order                                  that<\/p>\n
    was passed by the Enquiry Officer permitting the Petitioner to<\/p>\n
    be     represented by a defence representative but declining                                  the<\/p>\n
    assistance         of an advocate.         The Enquiry Officer recorded that<\/p>\n
    he     had<\/p>\n
                  administered a warning to the Petitioner to                            maintain<\/p>\n
    discipline         during the course of the enquiry.                       Significantly,<\/p>\n
    the     allegation        of bias did not surface on the next                        date       of<\/p>\n
    hearing       which was 16th February 1995 since the petitioner and<\/p>\n
    his representative were absent on that date.                           On 28th February<\/p>\n
    1995,       the    petitioner filed an application calling                          upon      the<\/p>\n
    Enquiry       Officer      to desist from conducting the enquiry.                             The<\/p>\n
    Enquiry       Officer has recorded the events which took place                                and<\/p>\n
    it     is    evident       that at that stage,           faced        with      obstructive<\/p>\n
    tactics       adopted      by   the       Petitioner,          the     Enquiry           Officer<\/p>\n
    expressed         his     desire to be relieved from the                   enquiry.           The<\/p>\n
    management         addressed       a    letter    to him        on     3rd      March        1995<\/p>\n
    following         which    the enquiry continued on 6th March 1995.                               A<\/p>\n
    chargesheeted           employee       cannot    make      a    virtue        of     his      own<\/p>\n
    obstructive behaviour in the course of a disciplinary enquiry.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                     -15-<\/span><\/p>\n
    Faced    with        obstructive         tactics,   the      Enquiry          Officer        is<\/p>\n
    justified       in       taking necessary steps in order to ensure                        that<\/p>\n
    the     enquiry          proceeds      in an even and     orderly         manner.          The<\/p>\n
    Enquiry      Officer        in the present case has recorded that                       there<\/p>\n
    was     no     substance        in the allegations but           he      expressed         the<\/p>\n
    desire to be relieved from the enquiry.                    That he was persuaded<\/p>\n
    not     to     do     so, cannot be indicative of a              bias         against      the<\/p>\n
    chargesheeted workman.                 If the submission were to be accepted,<\/p>\n
    it     will result in a consequence that a chargesheeted employee<\/p>\n
    could     at     his       own will obstruct a       disciplinary             enquiry        by<\/p>\n
    raising      untenable allegations against the Enquiry Officer and<\/p>\n
    then     suggest<\/p>\n
                             that      he desist from    conducting           the     enquiry.\n<\/p>\n
    Accepting       such       a    submission would result            in     negating         the<\/p>\n
    disciplinary process.               Significantly, when the Enquiry Officer<\/p>\n
    resumed      the         enquiry    on    6th   March     1995,         the     petitioner<\/p>\n
    participated in the enquiry without protest.\n<\/p>\n
    13.      The        charge against the petitioner was a serious                       charge<\/p>\n
    involving       the       use      of abusive and    improper           language        while<\/p>\n
    conducting          his classes.         53 students had initially               furnished<\/p>\n
    their     complaints           to the management on 20th            September           1994.\n<\/p>\n
    Statements          of 9 students were recorded and 5 students deposed<\/p>\n
    during       the course of the enquiry.             It is an admitted position<\/p>\n
    that the petitioner was furnished with the preliminary report,<\/p>\n
    statements          of    9 students and a copy of the joint                    complaint.\n<\/p>\n
    The evidence of 5 students who deposed in the enquiry remained<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                   -16-<\/span><\/p>\n
    unshaken       during       the   course    of the enquiry.               Each      of     the<\/p>\n
    students       deposed to the exact nature of the behaviour of                             the<\/p>\n
    petitioner          while    conducting     his classes and to the                  use      of<\/p>\n
    obscene       language particularly against women students.                              Three<\/p>\n
    of     the     students who deposed were women students.                         The      true<\/p>\n
    test       in law is whether the finding of misconduct is supported<\/p>\n
    by some evidence on record.                During the course of the enquiry,<\/p>\n
    Kum.         Ashwini       Vijay Kokate deposed about the nature                    of     the<\/p>\n
    behaviour of the petitioner in the following terms :\n<\/p>\n
    “….I say          that    Prof.Shri      Kalse used to         address         the      girl<\/p>\n
           students<\/p>\n
                           by saying that they are Nalayak.                   I further say<\/p>\n
           that        Prof Kalse used to abuse the girl students by using<\/p>\n
           filthy       words.     I say that Prof.         Shri Kalse used to                 use<\/p>\n
           abusive         language      towards   the        parents         of     the      girl<\/p>\n
           students.        I say that Prof Kalse used to sit in the class<\/p>\n
           by     keeping his legs on the table and hence his style                              of<\/p>\n
           sitting in the class was not proper.\n<\/p>\n
    14.        The next witness Kum.Swati Vijay Shetye deposed                          against<\/p>\n
    the petitioner in following terms :\n<\/p>\n
    “….I say          that he was to use very cheap and vulgar language.\n<\/p>\n
           I     say     that    he   never used to       maintain          decorum          while<\/p>\n
           talking to the girl students.\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                  -17-<\/span><\/p>\n
    .      He     used to tell to the girl students that you just                          knew<\/p>\n
           with     make-up       and parade in the college like whores.                        I<\/p>\n
           say     that if any student in the class did not                     understand<\/p>\n
           the     teaching of Prof.         Kalse and if he says so to                  Prof.<\/p>\n
           Kalse, Prof.          Kalse used to get annoyed with that student<\/p>\n
           and     used    to say that if you are a legal child                    of      your<\/p>\n
           parents then you should stand up and speak.”\n<\/p>\n
    15.      The       aforesaid witness also stated that              the      Petitioner<\/p>\n
    along       with     one person had come to her home on                16th        January<\/p>\n
    1995     and       warned    her parents of the dire          consequences             that<\/p>\n
    would be faced if their daughter deposed in the enquiry.\n<\/p>\n
    16.      The third witness Kum.Aruna Pandurang Deorukhkar deposed<\/p>\n
    to the following effect :\n<\/p>\n
    “….It is         true     that Prof.    Kalse was to use           insulting          and<\/p>\n
           derogatory          language towards the parents of the students.\n<\/p>\n
           It     is true that Prof.         Kalse used to say that the                  girls<\/p>\n
           students       in     my class are BAJARI and NALAYAK and I                     have<\/p>\n
           stated the same thing in my personal statement.                         ”\n<\/p>\n
    17.      The       third    student lived with her        mother,         her       father<\/p>\n
    having       expired,       and   she    deposed that     the      petitioner           had<\/p>\n
    administered a threat to her mother.\n<\/p>\n
    18.      The remaining two witnesses deposed to the nature of the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                  -18-<\/span><\/p>\n
    language      used by the Petitioner and the relevant part of                          the<\/p>\n
    deposition       of the fourth witness Shri Sambhaji Shivaji Ambre,<\/p>\n
    is to the following effect :\n<\/p>\n
    “….I say that at the time of teaching to the students in the<\/p>\n
          class Prof.          Kalse used to teach to the students that the<\/p>\n
          students        should follow the ideology of DAWOOD because he<\/p>\n
          is very brave.\n<\/p>\n
    .     In   the month of January 1995 Prof.               Kalse met me at               the<\/p>\n
          entrance        of    our     college and told me that why               you     are<\/p>\n
          getting yourself involved in my case and what benefit you<\/p>\n
          would     get from this.         He further told me that I will pay<\/p>\n
          you money and you should not participate in my Inquiry on<\/p>\n
          behalf of the college.”\n<\/p>\n
    19.    On this state of the evidence, the Enquiry Officer cannot<\/p>\n
    be    faulted     for coming to the conclusion that the                    charge        of<\/p>\n
    misconduct       is    established.       The only witness who deposed                   on<\/p>\n
    behalf     of    the Petitioner stated that she was unaware of                         the<\/p>\n
    complaint       and    she     believed    that it related          to     a      college<\/p>\n
    picnic.\n<\/p>\n
    20.    A departmental enquiry is not governed by strict rules of<\/p>\n
    evidence.        The       standard of proof that is required                is      proof<\/p>\n
    based on a preponderance of probabilities and not proof beyond<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                             -19-<\/span><\/p>\n
    reasonable           doubt              as in a criminal trial.             Reference          can      be<\/p>\n
    made     to the Judgment of the Supreme Court in Saini R.S.                                           vs.<\/p>\n
    State        of    Punjab<\/a> (1999-II-LLJ page 236) where it was held                                      as<\/p>\n
    follows :\n<\/p>\n
    “15…the Court                    while        exercising writ jurisdiction will                      not<\/p>\n
            reverse           a finding of the enquiry authority on the ground<\/p>\n
            that        the evidence adduced before it is insufficient.                                     If<\/p>\n
            there            is        some       evidence   to    reasonably            support           the<\/p>\n
            conclusion                 of     the    enquiring authority, it is                  not       the<\/p>\n
            function              of        the     Court to review the           evidence         and      to<\/p>\n
            arrive           at
\n                                    ig its own independent finding.                    The      enquiring<\/p>\n
            authority is the sole Judge of the facts so long as there<\/p>\n
            is        some        legal evidence to substantiate the finding                              and<\/p>\n
            the        adequacy             or      reliability of the evidence is                   not      a<\/p>\n
            matter           which can be permitted to be canvassed before the<\/p>\n
            Court in writ proceedings.”\n<\/p>\n
    21.      The        charge of misconduct in this case is                             supported          by<\/p>\n
    credible           and        reliable evidence.              The University and               College<\/p>\n
    Tribunal           was        justified in coming to the conclusion that                               the<\/p>\n
    charge was duly established.\n<\/p>\n
    22.     There was no material on the record to establish that the<\/p>\n
    enquiry           was     vitiated              by malafides.      Malafides          have       to     be<\/p>\n
    proved        and established by cogent and reliable evidence.                                       That<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                                  -20-<\/span><\/p>\n
    is    absent in the present case.               The University of Mumbai                     had<\/p>\n
    held     a fact finding enquiry.               However, it is evident from the<\/p>\n
    report     of    the Committee that the enquiry largely related                                to<\/p>\n
    allegations       against the management and administration of                               the<\/p>\n
    college.        The     learned counsel for the University has                          fairly<\/p>\n
    submitted       that    the       enquiry      which      was      convened         by       the<\/p>\n
    University       did not impinge upon the disciplinary proceedings.\n<\/p>\n
    The    University       was not as a matter of fact,                    exercising           the<\/p>\n
    disciplinary       jurisdiction since the allegations of misconduct<\/p>\n
    had      been    enquired         into    in    the    disciplinary              proceeding<\/p>\n
    instituted by the first Respondent.\n<\/p>\n
    23.      The    submission that the penalty is disproportionate                                to<\/p>\n
    the    misconduct cannot be accepted.                  As a matter of fact,                  the<\/p>\n
    tribunal        has     in    the    fair       exercise        of    its        discretion<\/p>\n
    substituted       the     penalty        of dismissal by one              of     compulsory<\/p>\n
    retirement       in     order      to ensure that the            petitioner           is     not<\/p>\n
    entirely       deprived      of     his service benefits.               The      charge        of<\/p>\n
    misconduct       which has been established against the                          petitioner<\/p>\n
    is serious.       In the affidavit-in-reply which has been filed by<\/p>\n
    the    management in this proceeding, reference has been made to<\/p>\n
    the      previous       punishments         which      were      imposed         upon        the<\/p>\n
    petitioner       for    acts of misbehaviour.               The service record                 of<\/p>\n
    the petitioner is not free from blemish.\n<\/p>\n
    24.    Consequently, no interference is warranted in exercise of<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>
\n                          -21-<\/span><\/p>\n
    the   writ   jurisdiction   under   Articles 226 and           227      of     the<\/p>\n
    Constitution of India.      The Petition is dismissed.             There will<\/p>\n
    be no order as to costs.\n<\/p>\n
                                 * * * * *<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:33:14 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vaijanath M. Kalase vs Ratnagiri Education Society & Ors on 3 July, 2008 Bench: Dr. D.Y. Chandrachud -1- 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 […]<\/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-178472","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVaijanath M. Kalase vs Ratnagiri Education Society & Ors on 3 July, 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\/vaijanath-m-kalase-vs-ratnagiri-education-society-ors-on-3-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vaijanath M. 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