1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1449 OF 2008 Dr. R. M. Kharwadkar, Age : 65 Years, Occu. : Retired, R/at B-31, Woodland Apartments, Gandhi Bhavan, Kothrud, Pune .. .. PETITIONER Versus 1. The State of Maharashtra. 2. The Joint Director, Higher Education, Nanded Division, Nanded. 3. Director of Higher Education, Maharashtra State, Central Building, Pune. 4. Nutan Vidyalaya Shikshan Sanstha, Nutan Parisar, Selu, Taluka Selu, Dist. Parbhani. 5. Swami Ramanandtirth Marathwada University, Nanded. .. .. RESPONDENT Shri A. R. Borulkar, Advocate for the Petitioner. Shri D. R. Korde, A.G.P. for the Respondents No. 1 to 3. Shri S. S. Choudhary, Advocate for the Respondent No. 4. Shri D. J. Choudhary, Advocate for the Respondent No. 5. CORAM : A. P. DESHPANDE & N. D. DESHPANDE, JJ. DATE : 20TH JANUARY, 2010. 2 ORAL JUDGMENT [ PER A. P. DESHPANDE, J. ] : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. The petitioner began his career as a member of teaching staff in a college administered and managed by respondent No. 4 society. In the year 1968 the petitioner was appointed as Professor in Chemistry and he came to be promoted to the post of Head of Department in the year 1973. With effect from 16th April, 1993, the petitioner was appointed to the post of Principal, Nutal Vidyalaya Selu, wherefrom, the petitioner retired on attending age of superannuation on 30th June, 2002. 3. During the absence of present petitioner for the period from 09.04.1997 to 13.08.1997 and 06.09.1999 to 04.05.2000 one Dr. B. T. Bhoskar acted as in-charge Principal. This petition is directed against an order dated 04th March, 2005 under which a sum of Rs. 3,73,141.30 paise is deducted from the retiral dues accrued and receivable by the petitioner which came to be appropriated towards reimbursement of loss caused to the college on account of negligence on the part of the present petitioner. 4. According to, learned counsel for the petitioner, the action on the part of respondent No. 4 in deducting the above referred amount from the retiral dues payable to the petitioner, terming him to be guilty of misconduct in the nature of persistent negligence, is passed without holding any enquiry. Our attention is 3 invited to the Statues framed under Section 28(u) read with Section 51 of Maharashtra Universities Act 1994. Chapter 6 of the said Statutes deals with Conduct, Discipline and Appeals. Statute 221 defines misconduct, whereas, Statutes 223 provides for minor and major penalties. Minor penalties are (i) censure, (ii) fine, (iii) withholding of increment of pay for specific period, (iv) recovery from his pay, or such other amounts as may be due from him. The recovery to be made from a teacher from his pay or retiral dues stand covered by minor penalty. The substantive provision in Statute 223 lays down that the minor penalties may, for good and sufficient reason be imposed on the teacher found guilty of misconduct. The penalty to be imposed has to be essentially commensurate with the severity or gravity of the misconduct committed and can only be imposed after sufficient opportunity is provided to the teacher of being heard and to defend himself. Learned counsel for the petitioner places reliance on the language used in the Statute 223. Learned counsel for the petitioner submits that the punishment imposed by the impugned order is covered by Statute 223 (a)(iv) and same can only be imposed on proof of misconduct after affording sufficient opportunity to the present petitioner. 5. Procedure for minor penalty is laid down under Statute 224. It provides that if the Disciplinary Authority is satisfied that the misconduct committed by teacher is serious enough to inflict any of the minor penalties, the Disciplinary Authority shall (1) issue a notice to the teacher in writing along with imputations of misconduct and require him to show cause as to why action proposed be not taken against him, (2) give reasonable opportunity 4 to the teacher to furnish the explanation, (3) take into consideration the explanation of the teacher and record findings on each imputation of misconduct, (4) issue the order imposing one or many of the minor penalties. It can be thus seen that before imposition of minor punishment, the management is obliged to issue a notice to a teacher along with imputations of misconduct and require him to show cause as to why action proposed to be not taken against him. 6. In the present case, it is undisputed that no notice along with imputations of misconduct was ever served on the petitioner and no reply from him was sought. In the absence of imputations being served on the petitioner, no occasion arises for the petitioner to furnish explanation to the same and/or its consideration by the management with a view to find out, as to whether the alleged misconduct is established or otherwise. We are in agreement with the submissions made by the learned counsel for the petitioner that in absence of adherence to the procedure prescribed under Statute 224, no punishment on the ground of misconduct can be imposed under Statute 223. 7. On facts it is pointed out that one Pallewar was working as accountant in the college. He had misappropriated the amounts after tampering the records and thus, the respondent No. 4 suffered losses. The management of respondent No. 4 institution had made preliminary fact finding enquiry and in the said preliminary fact finding enquiry, it was revealed that Pallewar was responsible for the misdeeds and as such, he was proceeded against in a Departmental Enquiry. The Secretary of the society was appointed as enquiry 5 officer, who conducted enquiry and submitted report. Our attention is invited to the said report to bring home the fact that Mr. Pallewar alone was responsible for misappropriation of funds, tampering of records and other acts of breach of trust. On perusal of the report of enquiry officer, it is seen that in regard to all the charges against Pallewar, he had admitted that he had withdrawn the money and used it for his personal purpose. He also seems to have undertaken to reimburse the amount to the respondent No. 4. In the said report, what is observed about the present petitioner is that he lacked supervision over the administration and unduly reposed uncalled for faith in Shri Pallewar. Obviously, the enquiry was not in regard to conduct of the petitioner. The above observations are extracted just to point out that barring, reposing faith in the man working along with the petitioner, he had committed no wrong. 8. Strangely enough, instead of recovering amount embezzled and misappropriated by Shri Pallwar, the respondent No. 4 proceeded to fasten the proportionate liability on the Principal and Acting Principal Dr. B. T. Bhoskar, having regard to the period of misappropriation. At no point of time, the respondent No. 4 has proceeded against the present petitioner, in Departmental Enquiry and at no point of time misconduct has been established against the present petitioner, after affording an opportunity of hearing as envisaged under the Statute referred to hereinabove. Thus, it can be safely said that the action of deduction of sum of Rs. 3,73,141.30 paise from the retiral dues payable to the petitioner by the respondent No. 4/Management is not legal, proper, just and fair. 6 9. Per-contra, learned counsel for the respondent No. 4 has vehemently opposed this petition by pointing out that the petition ought not to be entertained as the petition suffers from delay and laches and also for the reason that an appellate remedy though available to the petitioner before the Grievance Committee under Section 57 of the Maharashtra Universities Act, the same has not be resorted to and strait way the petition is filed. True it is that, the impugned order is dated 04th March, 2005 and the present petition has been filed in December 2007. However, the delay in our view in the facts and circumstances of present case, is not such, which would by itself dis-entitle the petitioner from claiming relief, that he has claimed in this petition. Refusing to entertain the petition on account of delay and laches would result in miscarriage of justice. Having regard to the fact that money is deducted by way of punishment from the retiral dues, which in turn casts stigma on the unblemished career of the petitioner, we reject the objection. In the facts of present case, we are of the view that the petition ought not to be dismissed on the ground of delay and laches. 10. The next objection is in regard to availability of alternate efficacious remedy to the present petitioner. It is settled position in law, that availability of alternate remedy by itself does not take away the jurisdiction of this Court. It is a self imposed restriction. This Court ordinarily does not entertain the petition when efficacious remedy is available to the petitioner. In the present case, remedy was available to the petitioner to approach to the Grievance Committee under Section 57 of the Maharashtra Universities Act. The remedy available under Section 57 is in the 7 nature of making a representation to the Grievance Committee and the Grievance Committee is vested with limited jurisdiction. Perusal of scheme of Section 57, indicate that the Grievance Committee does not act as an adjudicating authority. The binding nature of the order passed by the Grievance Committee and it's executability is doubtful. To us a remedy under Section 57 does not appear to be an efficacious remedy for redressal of grievance of the petitioner which is made in this petition. Be that as it may, even assuming for the sake of argument that there exists an efficacious alternate remedy, we do not propose to relegate the petitioner to the alternate remedy under Section 57 of the Maharashtra Universities Act, as the same would result in protracted litigation which a retired Principal, in our view does not deserve. 11. Touching merit of the matter, learned counsel for the respondent No. 4 has submitted that on various occasions notices were issued to the present petitioner pointing out that he has been persistently negligent in administrating the affairs of the college as a Principal and that because of his lack of proper administration, the college has suffered monitory losses and Mr. Pallewar could commit the misdeeds. We are of the view that, issuing notice after notice trying to blame the petitioner cannot be a substitute for procedure to be followed under Statute 224. We are also of the clear view, that without adherence to Statute 224 a minor penalty cannot be imposed under Statute 223, which is in the nature of recovery from the pay of the Principal or recovery of the amount from the retiral dues receivable by him. Learned counsel for the respondent No. 4 in all fairness does not dispute that no enquiry was held against the 8 present petitioner as contemplated by Statute 223 and 224 of the Statutes. 12. In that view of the matter, we have no hesitation to conclude that the action on the part of the respondent No. 4 contained in the communication dated 04th March, 2005 is unsustainable in law, thus we quash and set it aside. We direct the respondent No. 4 to pay sum of Rs. 3,73,141.30 paise to the petitioner within a period of 12 weeks from today, which it had deducted from the retiral dues payable to the present petitioner. We refuse to grant interest to the petitioner on the said amount as the petitioner is guilty of delay in approaching this Court. Petition is allowed. Rule is made absolute in above terms. [ N. D. DESHPANDE, J.] [ A. P. DESHPANDE, J.] bsb/Jan. 2010