Writ Petition No. 10634 of 2018 · Bombaybench High Court
Case Details
2025:BHC-AUG:13682 -1- WP NO.10634.2018 + 1IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10634 OF 20181Shram Sadhana Bombay Trust,At College of Engineering and Technology,Bambhori, Tq. And Dist. Jalgaon,Through its Chairman,The petitioner No. 1 duly authorizedThe Deputy Registrar by passing resolution to that effectShri. Yashwant Kondusing Chitte,Age : 47 years, Occu : Service,2The PrincipalCollege of Engineering and TechnologyBambhori, Tq. And Dist. JalgaonDr. Kishor s/o Sopan Wani,Age : 58 years, Occu : Service …. PetitionersVersusShri. Chandrakant Ramdas JoshiAge : 55 years, Occu : Nil,R/o : 1, Sailila, Adarsha Nagar, Jalgaon, Tq. And Dist. Jalgaon…. Respondent***Advocate for Petitioners : Mr. P. V. Barde i/b Senior Advocate Mr. A. G. TalharAdvocate for Respondent : Mr. A. R. Syed***WITHCIVIL APPLICATION NO. 2359 OF 2024 IN WP/10634/2018WITH -2- WP NO.10634.2018 + 1WRIT PETITION NO. 10631 OF 20181Shram Sadhana Bombay Trust,At College of Engineering and Technology,Bambhori, Tq. And Dist. Jalgaon,Through its Chairman,The petitioner No. 1 duly authorizedThe Deputy Registrar by passing resolution to that effectShri. Yashwant Kondusing Chitte,Age : 47 years, Occu : Service,2The PrincipalCollege of Engineering and TechnologyBambhori, Tq. And Dist. JalgaonDr. Kishor s/o Sopan Wani,Age : 58 years, Occu : Service …. PetitionersVersusShri. Vijay Govindrao NagpureAge : 51 years, Occu : Nil,R/o : Shriratna Colony, Pimprala Parisar, Near Munda High School, JalgaonTq. And Dist. Jalgaon…. RespondentWITHCIVIL APPLICATION NO. 2358 OF 2024 IN WP/10631/2018***Advocate for Petitioners : Mr. P. V. Barde i/b Senior Advocate Mr. A. G. TalharAdvocate for Respondent : Mr. A. R. Syed***CORAM:MANJUSHA DESHPANDE, J. RESERVED ON:19 MARCH, 2025PRONOUNCED ON:08 MAY, 2025 ***
Legal Reasoning
-3- WP NO.10634.2018 + 1COMMON JUDGMENT : 1.In these two writ petitions, petitioners are challengingthe common judgment and order dated 22.12.2017 passed in AppealNo. NMU-02/2009 and NMU-03/2009 respectively by the PresidingOfficer, University and College Tribunal, Aurangabad.2.The petitioner No. 1 is a Trust registered under theprovisions of Societies Registration Act, 1860 and Maharashtra PublicTrust Act, 1961. Petitioner No. 2 is the Engineering College run bythe petitioner No. 1 Trust. The respondents in respective appealswere permanent employees of the petitioner No. 2 College, appointedas Laboratory Technician and Laboratory Attendant respectively. 3.The respective respondents had approached theUniversity and College Tribunal, Aurangabad (hereinafter referred toas “College Tribunal”) against the order of termination with a prayerfor reinstatement with back-wages. Their appeals were allowed bythe College Tribunal vide common judgment and order dated22.12.2017, directing reinstatement with 100% back-wages.4.Being aggrieved by the judgment and order passed bythe College Tribunal, the petitioners who are the employer of therespondents have approached this Court by filing the present writ -4- WP NO.10634.2018 + 1petitions.5.When the matter was heard by this Court on 06.12.2018,this Court has granted ‘Rule’ and refused to grant stay to the order ofreinstatement. The petitioners were directed to permit therespondent to join the services w.e.f. 02.01.2019. So far as the back-wages are concerned, this Court has directed the petitioners todeposit 50% of back-wages by calculating it after taking intoconsideration various Government Resolutions within a period ofeight (8) weeks from the date of the order. The stay to the back-wages was made subject to deposit of 50% of back-wages.6.Being aggrieved by the order dated 06.12.2018, passedby this Court, the petitioners had approached the Hon’ble Apex Courtand the Hon’ble Apex Court, after hearing the respective parties, hasbeen pleased to modify the order passed by this Court granting stayto the order of reinstatement of the respondents pending the disposalof writ petition. The petitioners were directed to deposit an amountof Rs. 15,00,000/- towards back-wages payable to the respondentswithin a period of two months from the date of order, in addition tothe amount which was already directed to be deposited pursuant tothe interim order passed by this Court on 29.04.2019. Therespondents were granted liberty to withdraw the amount of
Decision
-5- WP NO.10634.2018 + 1Rs.15,00,000/- which was made subject to the final disposal of thepending writ petitions and the writ petitions were expedited. In termsof the modified order, the Civil Appeals No. 1011 of 2021 and 1012of 2021 have been disposed of by the Hon’ble Apex Court vide orderdated 19.03.2021.Facts in Appeal No. NMU-02/2009 filed by appellant Shri. VijayGovind Nagpure :-7.The respondent Vijay Nagpure was appointed asLaboratory Technician in the College on 06.10.1992. His servicerecord was satisfactory and unblemished. The respondent alongwithother employees had filed Writ Petition No. 1420 of 2002, before thisCourt against the petitioners demanding salary as per therecommendations of the 4th and 5th Pay Commissions. It was thecontention of the respondent that due to his participation in suchactivities, the Petitioners / Management was enraged andconsequently, the following major events of disciplinary action wereinitiated against him :-(I)On 11.06.2007, notice of show cause was issued to therespondent. (II)On 01.10.2007, reply was given by the respondent toshow cause notice.(III)On 22.09.2007, charge-sheet and the statement ofallegations were given to the respondent. -6- WP NO.10634.2018 + 1(IV)On 01.10.2007, the respondent demanded documentsfor submitting the reply and on 01.10.2007, reply wasgiven by him to the charge-sheet with the availabledocuments.(V)On 27.10.2007, Mr. Mohikhede was appointed asEnquiry Officer.(VI)On 13.12.2007, detailed reply to the charge-sheet wasgiven by the respondent.(VII)The Management examined five witnesses. Therespondent did not lead any oral evidence.(VIII)On 22.05.2008, final defence statement was submittedby the respondent.(IX)On 08.07.2008, Enquiry Report was submitted. (X)On 28.07.2008, a show cause notice was issued by theDisciplinary Authority. (XI)On 21.08.2008, reply to the show cause notice by therespondent.(XII)On 01.09.2008, an order of termination was issued. Facts in Appeal No. NMU-03/2009 filed by appellant Shri.Chandrakant Ramdas Joshi :-8.The appellant Chandrakant Ramdas Joshi was appointedas Helper on 21.08.1985 and thereafter, promoted as Lab Assistanton 13.07.1990. He was a permanent employee and had renderedsatisfactory and unblemished service with respondent No. 2 College.The Petitioners / Management was enraged on account of filing of -7- WP NO.10634.2018 + 1Writ Petition No. 1420 of 2002, for grant of appropriate pay scales asper the recommendations of 4th and 5th Pay Commissions. Therefore,with a vindictive approach, the Petitioners / Management hadreduced him in rank from the Post of Lab Assistant. He hadchallenged the order of Petitioners / Management in Appeal No.NMU-06/2004 before the University and College Tribunal which wasallowed on merits vide order dated 17.01.2005. 9.Being aggrieved by the decision of College Tribunal, thePetitioners / Petitioners / Management has filed Writ Petition No.4125 of 2005, before this Court. Rule was discharged in the writpetition on 26.08.2005. Although the petitioners could not obtainstay to the order passed by the College Tribunal dated 17.01.2005,they failed to implement it. The respondent was shown to bereinstated on the post of Lab Assistant but was paid salary of LabAttendant till his dismissal. Since he participated in the agitationagainst the petitioners and made various complaints against them,the following major events of disciplinary action were initiatedagainst him :-(I)On 17.08.2007, notice of show cause was issued to therespondent. (II)On 09.10.2007, reply was given by the respondent toshow cause notice. -8- WP NO.10634.2018 + 1(III)On 25.10.2007, charge-sheet and the statement ofallegations were given to the respondent.(IV)On 27.11.2007, the respondent demanded documentsfor submitting the reply and on 09.01.2008, reply wasgiven by him to the charge-sheet with the availabledocuments.(V)On 19.01.2008, Mr. Mohikhede was appointed asEnquiry Officer.(VI)On 09.01.2008, detailed reply to the charge-sheet wasgiven by the respondent.(VII)The Management examined two witnesses. Therespondent did not lead any oral evidence.(VIII)On 10.05.2008, final defence statement was submittedby the respondent.(IX)On 09.06.2008, Enquiry Report was submitted. (X)On 28.07.2008, a show cause notice was issued by theDisciplinary Authority. (XI)On 21.08.2008, reply to the show cause notice by therespondent.(XII)On 01.09.2008, an order of termination was issued. 10.It was his contention before the College Tribunal that theallegations levelled against him are not serious and sufficient forimposing major penalty of dismissal from the service. Grounds of Challenge before the Tribunal :-11.The respondents had challenged the order of termination -9- WP NO.10634.2018 + 1before the College Tribunal on the ground that the petitioners havenot followed the statutory procedure as contemplated under theMaharashtra Non-Agricultural Universities and Affiliated CollegesStandard Code (Terms and Conditions of Service of Non-TeachingEmployees) Rules, 1984 (hereinafter “Standard Code Rules, 1984”for short). There was a clear violation of principles of natural justicewhile conducting enquiry. It is alleged that since appellants have filedWrit Petition No. 1420 of 2002, and various complaints against thePetitioners, a vindictive approach has been adopted by the Petitioners/ Management. 12.It was also contended that punishment awarded isgrossly illegal and shockingly disproportionate. The unblemishedservice of 24 and 16 years rendered by the respective respondents hasbeen wiped out by terminating them without any justifiable reason byrecording perverse finding and without following principle of naturaljustice. 13.Both the appeals filed by the respective respondentswere heard together by the College Tribunal and decided by commonjudgment. After taking into consideration the Enquiry Report dated09.06.2008, and the order of the Disciplinary Authority, the PresidingOfficer has allowed the Appeals by relying upon the judgment of this -10- WP NO.10634.2018 + 1Court in case of Anant Bhagwan Kamble Vs. Principal, M.N.Dahanukar College of Commerce and Ors. [2007(3) Bom. C. R. 929].This Court, relying on Section 60 of the Maharashtra Universities Act,1994, has held that the College Tribunal, being the First AppellateCourt is entitled to re-appreciate the evidence and come to its ownconclusion. The Tribunal, after re-appreciating the evidence whichwas part of the departmental inquiry, has held that the procedure forimposing the major penalty, as prescribed in Rule 47 of the StandardCode Rules, 1984, is not followed. 14.The Presiding Officer has observed that in both theappeals, the record does not disclose that, the statements of witnesseswere recorded in the preliminary inquiry, for forming opinion, inorder to initiate a departmental inquiry against both the appellants.Therefore, in view thereof, he has come to the conclusion that theEnquiry Report in both the cases being vitiated is unsustainable. Thepenalty imposed is disproportionate to the charges. 15.The College Tribunal has recorded a finding that inspiteof opportunity available to the Petitioners, they have failed to bringon record any memos or warnings given to the appellants.16.Considering that the charges could not be proved by the -11- WP NO.10634.2018 + 1Petitioners by leading cogent evidence and its failure to adhere toappropriate procedure while conducting the departmental inquiry,the order of dismissal on the aforementioned background was held tobe disproportionate. Therefore, the appeals filed by the respectiverespondents herein were allowed by holding them to be entitled forreinstatement in service with back-wages. The Petitioners weredirected to reinstate the appellants within a period of two monthsfrom the date of order i.e. 22.12.2017.17.Shri. Barde, Learned Advocate for petitioners, submitsthat the Petitioner No. 1 is running Petitioner No. 2 College which ison 100% non-grant basis. Based on various complaints, serious lapsesin discharging of functions and indisciplined behaviour ofrespondents, the petitioners decided to initiate Disciplinaryproceedings against respondents. After conducting the inquiry, theEnquiring Authority submitted the Report on 08.07.2008. Afterconsidering serious misconduct of the respondents, the EnquiringAuthority has recommended major penalty against the respondent.18.It is further submitted that after receiving the inquiryreport, second show-cause notice alongwith inuiqry report was servedto the respondent on 28.07.2008. The respondent has filed reply tothe said show-cause notice on 21.08.2008. The Reply to the show- -12- WP NO.10634.2018 + 1cause notice was placed before the Governing Body of the Collegeheld on 26.08.2008, a resolution was passed by the Governing Bodyholding that charges of misconduct were proved, hence, it wasdecided to remove respondents from the service with immediateeffect without any terminal benefits. Accordingly, dismissal order wasissued on 01.09.2008.19.It is the contention of the petitioners that beingaggrieved by the order of termination, respondents had approachedthe University and College Tribunal. The College Tribunal, afterfinally hearing the parties, issued order of reinstatement with back-wages. According to the petitioners, the Presiding Officer, CollegeTribunal, has exceeded his jurisdiction while passing the orderimpugned. The Tribunal has committed grave error by re-appreciating the evidence, purportedly in exercise of powers underSection 60 of the Maharashtra Universities Act, 1994. It is hiscontention that no specific pleadings and prayers are made by theappellants before the Tribunal challenging the inquiry conductedagainst them. 20.The Petitioners have approached this Court challengingthe order of College Tribunal by filing present writ petitions. Theorder of University and College Tribunal is challenged on the -13- WP NO.10634.2018 + 1following grounds. (I)The respondents were not discharging their duties as perrules and regulations.(II)They were issued notices and warning from time totime.(III)They were not following the orders issued by theirsuperiors and they were making false and frivolousallegations against the Petitioners / Management,causing prejudice to the reputation of the College.(IV)Inspite of the fact that the Petitioners / Management hasfulfilled their demands, the respondents have indulgedin activities prejudicial to the interest of Petitioners /Management by raising grievance with the GovernmentAuthorities, as well as by making complaints to theUniversity.21.It is also contended by the petitioners that there are nospecific pleadings and evidence, as to which specific documents arenot provided to the appellants and in what manner, the prejudice iscaused to them by not providing the documents.22.As per Section 41 of the Standard Code Rules, 1984, it ismandatory to frame points for consideration which are not framed bythe Presiding Officer, Tribunal. According to him, there are variousjudicial pronouncements which make it mandatory to frame pointsfor consideration. -14- WP NO.10634.2018 + 123.It is further submitted that the findings of the PresidingOfficer about non-adherence to Rule 47 of the Standard Code Rules,1984, vitiates the inquiry is totally incorrect and misplaced. Rule 47provides for action on enquiry report in case, Enquiring Authority isnot the Disciplinary Authority. According to the learned Advocate forpetitioners, it is only in case of disagreement regarding findingsrecorded by the Enquiring Authority, finding on each charge isrequired to be recorded by the Disciplinary Authority. If theDisciplinary Authority is in agreement with the findings recorded bythe Enquiring Authority, it is not necessary for him to record hisseparate findings on each of the charges. 24.It is also contended that if at all the Tribunal was of theopinion that the procedure adopted while conducting the DisciplinaryInquiry was vitiated, at the most, the College Tribunal could haveremanded the matter back to the Disciplinary Authority forobservance on Rule 47 and inquiry should have proceeded from thestage where it was vitiated.25.In support of his contention, the learned Advocate forpetitioners relies on decision of Ravindra Shrawan Vyas Vs. NorthMaharashtra Universities Jalgaon [2015 DGLS (Bom.) 529], whereinit is held that the re-appreciation of evidence from the vitiated -15- WP NO.10634.2018 + 1inquiry is not permissible in law since it is not a reliable evidence. Itis thus contended that it was not within the domain of the CollegeTribunal, to re-appreciate the evidence from vitiated inquiry.26.As regards grant of back-wages, it is contended thatwhile granting back-wages to the respondents herein, no opportunityis granted to the petitioner to cross-examine the respondents abouttheir gainful employment. The respondents have not adduced anyevidence about their gainful employment, during pendency ofAppeal, which is necessary to be proved by the delinquent employee. 27.It is, therefore, submitted that in view of theaforementioned facts and circumstances, the appropriate procedurehas been followed by the Enquiring Authority and based upon theInquiry Report, the Disciplinary Authority has imposed appropriatepunishment in the form of dismissal of the respondents Nointerference in the order of termination issued by the petitioners iswarranted. As a result, the judgment and order passed by thePresiding Officer, University and College Tribunal needs to bequashed and set aside. 28.Per contra, learned Advocate for the respondents submitsthat the action of the petitioners is a result of filing of W. P. No. 1420 -16- WP NO.10634.2018 + 1of 2002, filed by the employees including the respondents herein,against the petitioners for grant of appropriate pay scales. W. P. No.1420 of 2002 was finally decided by this Court on 11.07.2017,wherein this Court has issued directions to the Petitioners /Management to fix the pay scales and pay alongwith allowances tothe petitioners who are non-teaching staff of the petitioner Institutionas prescribed by 4th, 5th and 6th pay commissions w.e.f. 01.01.1986,01.01.1996 and 01.01.2006 respectively and pay them the arrearsthereof in respect of the period of three years preceding therespective dates of filing the writ petitions till they were serving withthe respondents. 29.According to the learned Advocate for respondents, sincethe respondents have raised their legitimate demands by filingproceedings in the Court of law, the Petitioners have adopted avindictive approach against them by initiating Disciplinary Inquiry.Every attempt was made by the Petitioners to paralyse anddemoralise the respondents.30.It is the contention of the learned Advocate forrespondents that the entire inquiry is vitiated due to violation ofprinciples of natural justice and provisions of Standard Code Rules,1984. There was a blatant disregard to mandatory Rule 47(1) and -17- WP NO.10634.2018 + 1(2) of the Standard Code Rules. Though the Disciplinary Authorityand Inquiry Authority were distinct in the present matter, no separatefindings are recorded by the Disciplinary Authority. It is furthercontended that the documents which are annexed at Exhs. A to H tothe writ petition, were never produced before the Inquiry Committeeor the Tribunal, therefore, no reliance can be placed on it.31.It is the contention of the learned Advocate for therespondents that the documents were not supplied to the delinquentto set up his defence which is in breach of Rule 46(2)(b), of theStandard Code Rules, 1984. The procedure adopted was defectiveand against the principle of natural justice, even the punishmentimposed is shockingly disproportionate. Hence, the order passed bythe Presiding Officer does not deserve any interference. 32.According to the learned Advocate for the respondents,though it is claimed by the petitioners, that there is no statementabout their gainful employment, there is an averment in the Appealmemo itself that the respondents were unemployed during pendencyof Appeal and they had no source of income after the termination.Therefore, in view of the fact that they remained unemployed duringthe pendency of the Appeal, the Presiding Officer has rightly grantedback-wages with continuity of service. -18- WP NO.10634.2018 + 133.The learned Advocate for respondents relies on thejudicial pronouncement of Hon’ble Apex Court in Deepali GunduSurwase Vs. Kranti Junior Adhyapak Vidyalay [2014(2) Mh. L. J.480], wherein it is held that reinstatement with continuity of servicesand back-wages is a normal rule. While deciding such issue, theadjudicating authority or the Court may take into consideration thelength of service of the employee / workman, the nature ofmisconduct, if any, found proved against the employee / workman,the financial condition of the employer and similar other factors.Ordinarily, an employee or workman whose services are terminatedand who is desirous of getting back wages is required to either pleador at least make a statement before the adjudicating authority or theCourt of first instance that he / she was not gainfully employed orwas employed on lesser wages. If the employer wants to avoidpayment of full back wages, he has to plead and also lead cogentevidence to prove that the employee / workman was gainfullyemployed and was getting wages equal to the wages he / she wasdrawing prior to the termination of service. Once the employeeproves that he was not employed, the onus lies the employerspecifically to plead and prove that the employee was gainfullyemployed and was getting the same or substantially similar -19- WP NO.10634.2018 + 1emoluments. 34.Even otherwise, considering the gravity of allegationsand the vindictive approach of Petitioners, fresh inquiry is neitheradvisable nor permissible. It is further urged that the conduct ofPetitioners / Management also needs to be noted by this Court.Inspite of interim direction, petitioners have not reinstated therespondents. The respondents were required to invoke contemptjurisdiction, for compliance of directions issued by this Court in W. P.No. 1420 of 2002, directing the Petitioners / Management to fix thesalary and pay scales. In view of aforementioned facts andcircumstances, the Petitioners are not entitled for any discretionaryrelief in the writ jurisdiction. It is further submitted that there is noperversity or error of jurisdiction in the judgment and order passedby the Presiding Officer of the College Tribunal while allowing theAppeals. Hence, writ petitions deserve to be dismissed with costs.35.After considering the rival pleadings and the impugnedorder passed by the Presiding Officer alongwith documents placed onrecord, it is evident that the Presiding Officer has scrutinized therecord in the light of the pleadings of the parties right from the show-cause notice issued against the respective respondents, charge-sheetand reply filed by the them. -20- WP NO.10634.2018 + 136.The Presiding Officer, while deciding the Appeals, hasexercised the powers under Section 60 of the MaharashtraUniversities Act, 1994, which reads thus :General powers and procedure of Tribunal.60. (1) For the purposes of admission, hearing anddisposal of appeals, the Tribunal shall have the samepowers as are vested in an appellate court under theCode of civil Procedure, 1908, and shall also have thepower to stay the operation of any order against whichan appeal is made, on such conditions as it may think fitto impose and such other powers as are conferred on itby or under this Act.(2) The Presiding Officer of the Tribunal shall decide theprocedure to be followed by the Tribunal for the disposalof its business including the place or places at which andthe hours during which it shall hold its sittings. (3) Every appeal shall be decided as expeditiously aspossible. In every case, endeavor shall be made by theTribunal to decide an appeal within three months fromthe date on which it is received by the Tribunal. If theTribunal is unable to dispose of any appeal within thisperiod, it shall put on its record the reasons therefor.37.It is observed by the Presiding Officer that the CollegeTribunal is vested with same powers as vested in a Appellate Courtunder the Code of Civil Procedure, 1908. An appellate Court isentitled to re-appreciate the evidence and come to its ownconclusion. In exercise of the powers vested in the Appellate Court,the Presiding Officer has scrutinized the record pertaining to the -21- WP NO.10634.2018 + 1disciplinary enquiry initiated against the respondents herein.38.The Presiding Officer has taken into consideration eachand every charge in the charge-sheet and the reply filed by therespondents herein, based upon which, the order impugned has beenpassed by the Disciplinary Authority. 39.Following are the charges in the charge-sheet issuedagainst the Vijay Govind Nagpure who is respondent in Writ PetitionNo. 10631 of 2018.(I)Refusal to accept the correspondence and order passedby the Petitioners / Management thereby committingmisconduct.(II)Total disregard to the orders of superiors, resulting inviolation of the terms and conditions of the service,amounting to misconduct.(III)Causing interference with the educational andadministrative work by his conduct. (IV)Violation of standing orders and rules.(V)Making false allegations against the superiors.40.The Presiding Officer, has assessed the chargesalongwith the supporting documents which were placed on recordand the reply filed to it by the respondents. Upon scrutiny of therecord, it is observed by the Presiding Officer, that inspite of demandmade by the respondents for relevant documents, forming basis of -22- WP NO.10634.2018 + 1the show-cause notice, those were not supplied to him, whichamounts to violation of principles of natural justice. 41.Charge No. 1 was in respect of notice dated 26.05.2007which was issued by the Head of the Department to all the LabAssistants and Lab Technicians directing to keep the lab apparatusready for practical examinations. It is alleged that the respondent hasnot followed the directions. After going through the explanationgiven by the respondent, the Presiding Officer has held that since hewas given overlapping duty, he had sought guidance from thesuperiors which does not amount to any misconduct. 42.Second charge again about notice issued by theAuthority on 25.06.2007. It is alleged that the respondent has notdone his duties as directed and thereby created interference in thework of the examination which was also held to be not proved by thePresiding Officer after taking into consideration the reply given bythe respondent. 43.As regards the Charge No. 3 is concerned, it is allegedthat when the local inquiry committee was on a visit to the Collegeon 11.08.2005, the respondent had adorned black strip on hisforearm while doing his work, which was in protest against the -23- WP NO.10634.2018 + 1petitioners. It is alleged that it was against the Management and itsadministration which amounted to misconduct. Even this chargecould not be proved for want of evidence. 44.Charge No. 4 was about an incident of 18.09.2003wherein the respondent was directed to arrange the apparatus in thelaboratory during the practical examinations. This charge was held tobe not proved since there was no witness or a student examined bythe Management. 45.So far as Charge No. 5 is concerned, it was alleged thatrespondent had made false allegations against the Superiorsregarding deduction of the amount of provident fund and alsocomplaint was made by the respondents to the Government againstthe Management alleging that Management has failed to makepayment as per the recommendations of Pay Commissions. Similarly,complaints are also made to the All India Technical EducationCouncil, Mumbai and other Government Authorities. The PresidingOfficer held that there were no misconduct since the complaintsmade by the respondents were genuine. After going through therecord annexed with the charge-sheet and the charges levelledagainst the respondent, the Presiding Officer has recorded his findingthat none of the charges could be proved against the respondent. -24- WP NO.10634.2018 + 146.As far as charges against respondent Shri. ChandrakantRamdas Joshi in Writ Petition No. 10634 of 2018 are concerned,there are only two charges against him. First charge is regardingtying black strip around the shoulder during the visit of local enquirycommittee on 27.07.2007. It is alleged to have caused breach of Rule41(6)(c) of the Standard Code Rules, 1984 which amounts tomisconduct under Rule 42(d) of the Standard Code Rules, 1984. It isheld by the Presiding Officer, that for this very charge againstrespondent Vijay Govind Nagpure, the charge was held to be notproved for want of substantive evidence. 47.The Presiding Officer, has relied on the decision inMysore Paper Mills Officers’ Association, Bhadravathi, and Ors. Vs.Mysore Paper Mills, Ltd.. Bhadravathi, and Ors [1999 SCC OnlieKarnataka 62], wherein it is held that whenever the Petitioners /Management fails to fulfill the demand of employee or neglects thegrievances and problems of the employees or if any adverse decisionis taken against them or if any of the officers cause harassment to thesubordinates, the same will be protested by various means. Such asconducting demonstrations by raising slogans, taking out processions,gheraoing tools / pen down strike, etc. Wearing black badge is alsoone of the kinds of protest, that can be exhibited by the petitioners -25- WP NO.10634.2018 + 1under Articles 19(1)(a) to 19(c) of the Constitution of India and thesame cannot be considered as ‘misconduct’ for any reason. 48.Normally, in such circumstances, the protesters merelywear black badges and will engage in their duties without causingany sabotage to the property of the establishment unit. No harm iscaused to anybody by wearing badges. It is the expression of theirfeelings against the decision of the Petitioners / Management thatwere affecting their fundamental rights and statutory rights.Therefore, wearing black badge cannot be termed as misconduct asalleged and it will not be an act subversive indiscipline or goodbehaviour. 49.In view of the above judicial pronouncement of theHon'ble Supreme Court and also considering that the same chargeheld to be not proved for want of evidence against the petitioner inWrit Petition No. 10631 of 2018, the Presiding Officer has held that itdoes not amount to misconduct. 50.The other charge i.e. Charge No. 2 was regarding thedisbursement of pay and allowances to the respondent, inimplementation of the recommendation of pay commissions asdirected by the Government from time to time. -26- WP NO.10634.2018 + 151.According to the Petitioners / Management, inspite ofmaking payment as per pay scales, the appellant has filed falsecomplaint on 29.11.2006 to the Chairman, All Indian TechnicalEducation Council, Bombay and the Direction, Technical Education,Maharashtra State, Mumbai. It is not disputed that the appellantsVijay Nagpure and Chandrakant Joshi had approached for redressalof their grievance regarding pay scales in writ petition by filing W. P.No. 1420 of 2002. By passing the order in said writ petition, thisCourt has directed the Petitioners / Management to make payment tothe petitioners therein according to the recommendations of PayCommission which are applicable to them. 52.Therefore, on the background of the order passed by thisCourt, it is held by the Presiding Officer that there is no substance inthe Charge No. 2. Thus, it is held by the Presiding Officer that noneof the charges were proved by the petitioners during the DisciplinaryEnquiry against respondent Chandrakant Joshi. 53.The Presiding Officer has further relied upon Rule 47 ofthe Standard Code Rules, 1984 which reads thus :47. Action on Enquiry Report :-(1) The Disciplinary Authority, if it is not itself Enquiring -27- WP NO.10634.2018 + 1Authority, shall consider the report and record itsfindings on each charge.(2) (i) If the Disciplinary Authority having regard to itsfindings on any of the articles of charge, is of the opinionthat any of the major penalties shall be imposed on theemployee, then it shall - (a) furnish to the employee, a copy of the report ofthe inquiry held by it and its findings on each article ofcharge or where the inquiry has been held by anEnquiring Authority appointed by it, a copy of the reportof such Authority and a statement of its findings onarticle of charge expressly stating whether or not itagrees with the findings of the Enquiring Authority,together with brief reaons for its disagreement, if any,with the findings of the Enquiring Authority; and (b) give to the employee a notice stating the penaltyproposed to be imposed on him and calling upon him tosubmit within fifteen days of receipt of the notice or suchfurther time not exceeding fifteen days, as may beallowed, such representation as he may wish to make onthe proposed penalty on the basis of the evidenceadduced during the inquiry.(ii) The Disciplinary Authority shall consider therepresentation, if any, made by the employee anddetermine the quantum of penalty, if any, that should beimposed on him on the basis of the evidence adduced. (3) If the Disciplinary Authority, having regard to thefindings, is of the opinion that any of the minor penaltiesshall be imposed on the employee, it shallnotwithstanding anything contained in these rules,determine what penalty shall be imposed on theemployee and make an order imposing such penalty.(4) If the Disciplinary Authority, having regard thefindings on the charges, is of the opinion that its nopenalty shall be imposed or that the employee behonourably acquitted, the Disciplinary Authority shall -28- WP NO.10634.2018 + 1inform the employee accordingly. (5) The Disciplinary Authority, itself not being theEnquiring Authority, shall consider the enquiry reportand if it disagrees with the Enquiring Authority on anyarticle of charge, it shall record its reasons for suchdisagreement, and refer the case back to the EnquiringAuthority for further enquiry and report. The EnquiringAuthority shall thereon proceed to hold further enquiryaccording to the provisions of the proceeding rule as faras may be. (6) The orders made by the Disciplinary Authorityunder this rule shall be communicated to the employeeand the Enquiring Authority.54.According to the Presiding Officer, while imposing themajor penalty i.e. dismissal from service, the procedure for theenquiry is provided in Rule 46 of the Standard Code Rules, 1984.Upon scrutiny of the record, the Presiding Officer has held thatduring Disciplinary Enquiry against both the respondents, thestatement of imputation of misconduct or misbehaviour in support ofeach article of charge is not annexed to the Article of Charges. Whenin fact, it was incumbent on the part of disciplinary Authority tocomply with Rule 46(2)(b) of the Standard Code Rules. Rule 46(2)(b) is reproduced hereunder which reads thus :Rule 46(2)(b) :A statement of imputation of misconduct or misbehaviourin support of each article of charge which shall contain :- -29- WP NO.10634.2018 + 1(i) a statement of all relevant facts including admission, orconfession by the employee, and (ii) a list of documents by which a list of witnesses bywhom, the articles of charge are proposed to be sustained. 55.Another important aspect which is recorded by thePresiding Officer about disciplinary proceedings is that after perusingthe entire record in both the appeals, he found that statements ofwitnesses were not recorded in the preliminary enquiry, for formingopinion requiring to institute a departmental enquiry against both theappellants. Therefore, he has recorded finding that the EnquiryReport in both the cases cannot be sustained.56.Considering the charges levelled against the respondentsherein, the Presiding Officer has found the punishment to bedisproportionate and violative of Article 14. The observations madeby the Presiding Officer about disproportionate punishment are onthe background that the respondent Petitioners / Management hasnot placed on record any memo or warnings issued to therespondents about their behaviour, conduct while discharging theirduties. It is observed that considering that the respondents hadclaimed that they have put in unblemished service, the punishment ofdismissal from services is found to be shockingly disproportionate tothe charges levelled against them. -30- WP NO.10634.2018 + 157.Relying on the reported decision of the Hon'ble ApexCourt in case of Color Chem Limited Vs. A. L. Alaspurkar and Ors.(AIR 1998 SC 948), the Presiding Officer has come to the conclusionthat the punishment of dismissal was shockingly disproportionate tothe charges against the appellants. It is held that respondent couldnot prove the charges levelled against the appellants, hence areentitled to be reinstated in services with back-wages. 58.Upon making the aforementioned observations, both theappeals filed by the respondents herein were allowed directing therespondents No. 1 and 2 Petitioners / Management before theCollege Tribunal to reinstate the appellants therein with continuity ofservice and pay arrears of back-wages with service benefits accruedthereof.59.Upon going through the judgment and the groundsraised by the petitioner in both the writ petitions, following questionsarise before this Court for consideration :-(I)Whether it was within the powers of Presiding Officer,University and College Tribunal, Aurangabad to re-appreciate the evidence adduced during the DisciplinaryEnquiry ?(II)Whether the enquiry was vitiated on account of non- -31- WP NO.10634.2018 + 1adherence to Rule 47 of the Standard Code Rules, 1984and if yes, what was the course that was required to beadopted ?(III)Whether penalty is shockingly disproportionate andwhether the respondents are entitled for back-wages ?60.The Presiding Officer, while passing the impugned order,has in unambiguous terms observed that he has re-appreciated theevidence produced during the disciplinary proceedings in exercise ofhis powers under Section 60 of the Maharashtra Universities Act,1994. Being the first appellate Authority, it was well within thepowers of the Presiding Officer to re-appreciate the evidence that wasadduced during the disciplinary proceedings. While making the aboveobservations, reliance is placed on Anant Bhagwan Kamble Vs.Principal, M. L. Dhanukar College of Commerce and Ors. [2007(3)Bom. C.R. 929], this Court has made following observations :-“9. Section 59 of the Maharashtra Universities Act, 1954says that notwithstanding anything contained in anylaw or contract for the time being in force any employee(whether a teacher or other employee) in anyuniversity, college or recognised institution (other thanthat managed and maintained by the State Government,Central Government or a local authority), who isdismissed removed or whose services are otherwiseterminated or who is reduced in rank by the universityor the management and who is aggrieved, shall have aright of appeal against any such order to the Tribunal.For the purpose of adjudication, hearing and disposal ofappeals the Tribunal shall have the same powers as are -32- WP NO.10634.2018 + 1vested in an appeal Court under the Code of CivilProcedure, 1908. It also states that the Tribunal shallhave the power to stay the operation of any orderagainst which an appeal is made, on such terms andconditions, as the Tribunal may think fit. Section 61 ofthe Maharashtra Universities Act, confers power on theTribunal, after giving reasonable opportunity of beingheard, to decide and set aside the order of theUniversity or the management, partly or wholly anddirect reinstatement of the employee to the same postor to a lower post or to restore the employee to the rankwhich he held before reduction or to grant any otherrelief.10. It is true the normally in a revision, writ or otherproceedings the against an order passed in a domesticenquiry the authority hearing the revision, writ or otherproceedings does not re-appreciate the evidenceadduced before the Enquiry Officer. However, Section60 of the Maharashtra Universities Act, provides thatthe Tribunal shall have the same powers as are vested inan Appellate Court under the Civil Procedure Code. AnAppellate Civil Court is entitled to re-appreciate theevidence and come to its own conclusions. It is entitledto set aside the findings which are not perverse buterroneous. The Tribunal constituted under theMaharashtra Universities Act, 1994 hearing an appealunder Section 59 being an Appellate Court, in my view,is entitled to re-appreciate the evidence adduced beforethe Enquiry Officer and come to its own conclusion asto the correctness of the findings of fact recorded by theEnquiry Officer. The Tribunal does so like a Court ofappeal exercising appellate powers under the CivilProcedure Code. The Tribunal is entitled to reappreciatethe evidence and reverse a finding of fact which itconsiders erroneous though not perverse. Therefore, thecontention of the learned Counsel for the college thatthe Tribunal erred in reappreciating the evidence andsetting aside the finding of guilt on seven out offourteen charges has to be rejected.” -33- WP NO.10634.2018 + 161.In view of the observations of this Court as reproducedherein above, as far as re-appreciation of evidence while exercisingthe powers vested under Section 60 of the Maharashtra UniversitiesAct, 1994 is concerned, I do not find any perversity in the findingsrecorded by the Presiding Officer, University and College Tribunal. Itis well settled law that first appellate Court can re-evaluate and re-appraise both oral as well as documentary evidence. First appellateCourt is a final fact finding Court. 62.In the case of Santosh Hazari Vs. Purushottam Tiwari(AIR 1995 SC 965), it is held as under. “The appellate Court has jurisdiction to reverse or affirmthe findings of the trial Court. First appeal is a valuableright of the parties and unless restricted by law, the wholecase is therein open for rehearing both on questions of factand law. The judgment of the appellate Court must, therefore,reflect its conscious application of mind, and recordfindings supported by reasons, on all the issues arisingalong with the contentions put forth, and pressed by theparties for decision of the appellate Court. The appellateCourt agreeing with the view of the trial Court need notrestate the effect of the evidence or reiterate the reasonsgiven by the trial Court; expression of general agreementwith reasons given by the Court, decision of which is underappeal, would ordinarily suffice. As a matter of law if the appraisal of the evidence by thetrial Court suffers from a material irregularity or is basedon inadmissible evidence or on conjectures and surmises,the appellate Court is entitled to interfere with the findingof fact” -34- WP NO.10634.2018 + 163.The Presiding Officer of the College Tribunal who is theFirst Appellate Court has taken into consideration all the relevantmaterial and evidence that was placed before the DisciplinaryAuthority and after scrutinizing the said material, recorded thefinding that the charges against the appellants are not proved. Theorder passed by the Presiding Officer is a well reasoned order whichdoes not need any interference.64.The next question that arises for consideration iswhether the inquiry was vitiated on account of non-adherence toRule 46 and 47 of the Standard Code Rules, 1984. So far as thefinding about necessity of recording of findings by the DisciplinaryAuthority on each charge is concerned, in the present case, there isno disagreement recorded by the Disciplinary Authority to any ofcharge. The Disciplinary Authority has recorded its agreement withall the charges, therefore, the enquiry would not vitiate on thatcount. It is only in case where the Enquiring Authority and theDisciplinary Authority are not one and the same, the exercise ofrecording opinion either in agreement or disagreement on eachcharge is required to be undertaken.65.In the present case, admittedly, Enquiring Authority and -35- WP NO.10634.2018 + 1the Disciplinary Authority are distinct and it was necessary to recordfindings on each charge. However, considering that there was nodisagreement on any of the charges, the Disciplinary Authority is inagreement with the Enquiring Authority on all the charges, it wouldhave been an futile exercise of recording agreement on each of thecharges. Therefore, I do not find any substance in the observationthat the enquiry is vitiated on account of non-adherence to the Rule47(2)(a) of the Standard Code Rules, 1984. The enquiry cannot besaid to have vitiated on account of non-adherence to Rule 47 of theStandard Code Rules, 1984. 66.The Presiding Officer has recorded his finding on thebasis of evidence produced on record in the enquiry and after re-appreciating the evidence, it is held that the charges are not proved.In view of the findings that charges are not proved, the penalty ofdismissal from service cannot be sustained. Even if the charges wouldhave been proved, the penalty of dismissal from service afterrendering 24 and 16 years of respective service, is shockinglydisproportionate to the charges levelled against the respondents.67.It is but apparent that merely because the respondentsherein have approached this Court raising their legitimate grievanceabout non-payment of salary and emoluments as per -36- WP NO.10634.2018 + 1recommendations of the Pay Commissions applicable to them.Holding grudge against the respondents, the Petitioners /Management have taken such a drastic step against the respondents.The respondents were required to file Writ Petition No. 1420 of 2002in this Court and it is only after filing of writ petition, the presentpetitioners have started the disciplinary proceedings against thethem.68.So far as case of respondent Chandrakant Joshi isconcerned, two charges were levelled against him for registeringprotest by wearing black strip and also making representations to theGovernment Authorities for grant of appropriate pay scales whichwas not paid by the Petitioners / Management. 69.Similarly, even in case of Vijay Nagpure, there were fivecharges among which the third charge was held to be not proved forwant of evidence. As far as Charges No. 1, 2, 4 and 5 are concerned,it pertain to the alleged misconduct of not following instruction ofsuperiors and not performing the assigned duties and therebycommitting misconduct. 70.The charges against the respondents cannot be said to begrave to such extent that only dismissal from service and no other -37- WP NO.10634.2018 + 1lesser punishment could have been awarded for such charges.Though the petitioners have urged that if at all the Presiding Officerwas of the opinion that the enquiry is vitiated, he should haveremanded the matter back to the Enquiring Authority to takecorrective steps and pass orders afresh after taking correctivemeasures. From the findings recorded by the Presiding Officer, I donot find any perversity in the findings recorded by the CollegeTribunal about shockingly disproportionate punishment. It isperfectly inconsonance with the reasoning recorded by him aftertaking into consideration each charge. The order of College Tribunalis neither arbitrary nor perverse. Therefore, it does not need anyinterference.71.As far as the objection to the grant of back-wages isconcerned, when the Court is of the opinion that the terminationitself was bad in the eyes of law, reinstatement with grant of back-wages is the necessary and natural consequence, as has been held bythe Hon'ble Supreme Court in case of Deepali (cited supra), therelevant paragraphs of the said judgment are already reproducedherein above. 72.Hence, I do not find any illegality or perversity in grantof back-wages to the present respondents. Even otherwise, upon -38- WP NO.10634.2018 + 1going through the averments made in the appeal filed by therespondents herein before the Tribunal, there is averment in theappeal memo that the appellants are entitled for back-wages sincethey are rendered jobless and they are not having any source ofincome and they are not gainfully employed in any public or privatesector. Therefore, in view of averments made by the respondentsherein in the appeal before the College Tribunal, there is nosubstance in the contention of the petitioners that back-wages oughtnot to have been granted to the respondents. In fact, it was for thepetitioners to prove before the Tribunal that the respondents hereinwere gainfully employed during the pendency of the proceedings inrebuttal of the averment made in the appeal memo.73.The petitioners have approached this Court invokingjurisdiction under Article 227 of the Constitution of India. Thepowers to interfere with the orders of the subordinate Court inexercising its powers under Article 227 are very limited. The order ofSubordinate Court can be interfered with only in following cases. (I)If the order is arbitrary, capricious or perverse.(II)The order is passed ignoring the settled proposition oflaw.(III)There is an error of law.(IV)There is lack of jurisdiction while passing the order. -39- WP NO.10634.2018 + 174.The tests of exercise of powers under Article 227 of theConstitution of India has been considered by the Hon’ble Apex Courtin a Five Judges Constitution Bench in case of Rajendra Diwan Vs.Pradeep Kumar Ranibala and Ors. [(2019)20 SCC 143]. Whileconsidering the scope of powers conferred by Article 227 ofConstitution of India, the Hon’ble Apex Court has held that the powerof judicial superintendence must be exercised sparingly, to keep thesubordinate Courts and tribunals within the limits of their authority.When a Tribunal has acted within its jurisdiction, the High Courtdoes not interfere in exercise of its extraordinary writ jurisdictionunless there is grave miscarriage of justice or flagrant violation oflaw. Jurisdiction under Article 227 cannot be exercised “in the cloakof an appeal in disguise”. It is further observed that in exercise of itsextraordinary powers of superintendence and/or judicial reviewunder Article 226 and 227 of the Constitution of India, the HighCourts restrict interference to cases of patent error of law which go tothe root of the decision; perversity; arbitrariness and/orunreasonableness; violation of principles of natural justice, lack ofjurisdiction and usurpation of powers. The High Court does not re-assess or re-analyze the evidence and/or materials on record. -40- WP NO.10634.2018 + 175.In view of the above observations as already discussedherein above, I do not find that there is any case for interferencemade out by the petitioners in both the writ petitions. Therefore,both writ petitions deserve to be dismissed.76.Needless to state that the petitioner in W. P. No. 10634of 2015, who has already attained the age of superannuation, will beentitled to all the retiral benefits, which he is entitled to receive onhis retirement, within a period of three months from the date of theorder. The amount of Rs. 15,00,000/- that has already beendeposited and received by both the petitioners shall be adjusted inthe dues payable to them. As a result of dismissal of writ petitions,the order dated 22.12.2017 passed by University and CollegeTribunal, Aurangabad, shall be implemented by the partiesconcerned. Hence, following order :- ORDERI.Both Writ Petitions are dismissed.II.Rule stands discharged.III.All the pending civil applications stand disposed of. [MANJUSHA DESHPANDE, J.]Omkar Joshi -41- WP NO.10634.2018 + 177.After pronouncement of judgment, learned Advocateappearing for petitioners makes a request that after the remand ofthe matter by the Hon’ble Supreme Court, an interim relief wasoperating in favour of petitioners. Hence, he makes a request that theimplementation of the judgment and order may kindly be stayed forapproaching the Hon’ble Supreme Court.78.Considering the request made by the learned Advocatefor the petitioners and in view of the fact that interim relief wasoperating in favour of the petitioners, the operation andimplementation of the judgment and order shall be stayed for aperiod of six weeks from today. [MANJUSHA DESHPANDE, J.]Omkar Joshi