1 LPA NO.115 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.115 OF 2010 IN WRIT PETITION NO.6219 OF 2009 Mateen Khan Lateef Khan ... Appellant Versus Khairul-Islam Higher Education Society and others ... Respondents Ms. Ushajee Peri i/by Mr. Mihir Desai for the appellant. Mr. A.I. Patel, Assistant Government Pleader for State-respondent Nos.4 and 5. Mr. Nasrat Shah with Mr. A.K. Gupta, Mr. Sayed Zia, Ms. E.M.A. Almeida and Mr. A.S. Karwande for respondent Nos.1 and 2. CORAM : MOHIT S. SHAH, C.J. & S.C. DHARMADHIKARI, J. DATED : 14TH JULY, 2010 P.C. This appeal under Clause 15 of the Letters Patent is against the judgment dated 26th August, 2009 of the learned Single Judge dismissing the writ petition in which the appellant herein had challenged the order of the University and College Tribunal in Appeal No.60 of 2008. In the said appeal, the appellant had challenged the termination order dated 29th April, 2008 by which the appellant's services were terminated with effect from 30th April, 2008 after holding the departmental enquiry. 2. The appellant was appointed as Library Attendant in respondent 2 LPA NO.115 OF 2010 No.1 college. Departmental enquiry was initiated against him on three charges viz. (i) refusal to accept the communication served upon him; (ii) allegation about disorderly behaviour with the Registrar of the College; and (iii) the petitioner had submitted a complaint dated 8th December, 2006 to the Secretary/Chairman of the employees' union indicating that one Head Clerk had taken bribe from him for extending benefit of fixation of pay scale. 3. At the departmental enquiry, the Management examined three witnesses viz. Registrar of College, Head Clerk of the College and the Principal of the College. On the basis of the evidence of the said officers of the Management, the enquiry officer submitted a report holding that the charges levelled against the delinquent were proved. The Management accepted the report of the enquiry officer and after hearing him on the question of quantum of penalty, the Management passed the impugned order terminating the appellant's services with effect from 30th April, 2008. 4. At the hearing of the appeal, the learned counsel for the appellant has submitted that the enquiry was vitiated by violation of principles of natural justice as the appellant was not given reasonable opportunity for defending himself and as well as request made by the appellant to examine his own witness was not accepted by the enquiry officer. 5. The learned counsel for the Management submitted that the enquiry officer has given good reasons for not accepting the appellant's request. 3 LPA NO.115 OF 2010 6. Having heard the learned counsel for the parties, we are of the view that the reasons given by the enquiry officer for not accepting the appellant's request for permission to examine his own witness do not appear to be cogent. The appellant wanted to examine the witness who was office bearer of the employees' union in support of his case that the Head Clerk of the College had been demanding extra payment for pay fixation. Several employees had submitted a memorandum making a grievance against such demands allegedly made by the Head Clerk of the College. What value should be attached to the evidence of such witness is the matter relating to the provisions of appreciation of evidence and, therefore, the enquiry officer was not justified in rejecting the appellant's request for examining his own witness. 7. In view of the above, the impugned order of termination deserves to be set aside and is hereby set aside. 8. The next question is what relief should be granted to the appellant. 9. In view of the facts and circumstances of the case, the learned counsel for the appellant submits that in view of the disputes between the management and the appellant, the appellant would not like to continue to render his services to the respondent-college and prefer to retire voluntarily from service. The learned counsel for the appellant states that the appellant had joined service of the respondent No.1 college on 21st February, 1980 and has, thus, already put in more than 30 years of service. It is submitted that in the facts of the case, the appellant has already put in more than 20 years of service on 30th April, 4 LPA NO.115 OF 2010 2008 when his services were terminated. The learned counsel for the appellant submits that the appellant is ready and willing to submit an application for voluntary retirement with effect from 30th April, 2008 and that the usual notice period of three months will be waived. 10. The learned counsel for respondent No.1 college management states that the respondent No.1 college would have no objection in accepting the request for voluntary retirement, provided the appellant does not claim any monetary benefits by way of arrears of salary or any other monetary benefit for the period from 1st May, 2008 till today or for any other period except the retiral dues payable to the appellant in accordance with the Government rules. 11. The learned AGP for respondent No.4-Joint Director, Higher & Technical Education and respondent No.5 State Government states that the said respondents will have no objection if the aforesaid course of action being adopted. 12. In view of the above, we allow this appeal, set aside the judgment and order dated 26th August, 2006 of the learned Single Judge and direct that upon the appellant submitting an application for voluntary retirement with effect from 30th April, 2008 and if such application is submitted within two weeks from today, respondent No.1 college management shall accept the request and forward the same to the appropriate authority for enabling the appellant to draw the retiral benefits including gratuity and other benefits in accordance with the rules applicable. It is further clarified that since the order of termination 5 LPA NO.115 OF 2010 has been set aside and we are not permitting the respondents to conduct the enquiry de novo or from any other stage, the respondents shall not take into consideration the cognizance of the enquiry in the past as a factor against the appellant's request for voluntary retirement being accepted. 13. The respondent No.1 college shall accept and forward the application two weeks thereafter and respondent Nos.4 and 5 shall take appropriate decision in the matter within two months from the date of receipt of the application. CHIEF JUSTICE S.C. DHARMADHIKARI, J.