1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1495 OF 1989 Professor Anil Vasant Mandke ... Petitioner Versus 1.Indian Institute of Technology 2.Professor Biswajit Nag 3.Miss N.A. Bandukwala, the inquiry Officer appointed by Respondent No2. 4.The Visitor Honourable His Excellency the President of India. 5.Union of India. ... ... Respondents Petitioner in person, present. Mr.P.M. Patel for Respondents. ---- CORAM : SWATANTER KUMAR, CHIEF JUSTICE AND S.C. DHARMADHIKARI, J. Date of reserving the Judgment : 4 th May 2009 Date of pronouncing the Judgment : 23 rd July 2009 2 JUDGMENT : (Per S.C. Dharmadhikari, J.) 1. By this Writ Petition, under Article 226 of the Constitution of India, the Petitioner challenges the order of suspension dated 18th June 1986, Exhibit-A to the Petition, the charge-sheet issued to him on the same date, copy of which is at Exhibit-B to the Petition, so also the order dated 10th March 1989 removing him from services of the Indian Institute of Technology ( I.I.T. for short). 2. The Petitioner appears in person. Aggrieved by these orders, he has filed the present Petition contending that he has a bright academic career and background. He states that an advertisement was issued by the 1st Respondent on 13th of August 1975, inviting applications for filling up of the posts of Training and Placement Officer in I.I.T., Mumbai. He submits that a letter of 3 appointment was issued on 20th December 1975. The Petitioner underwent a medical examination on 26th December 1975 and joined duties with effect from 16th January 1976. He was given a confirmation letter on 16th of January 1977. He submits that all throughout the documents and letters issued to him demonstrate that his designation is that of a Professor. I.I.T. Professors and employees were treating him as Professor and, therefore, that was his designation. He submits that other Organizations and Authorities also corresponded with him by addressing him as Professor Mandke. He states that the Board of Governors granted him full pay scale of Rs.1500-2500 vide orders dated 20th December 1985 and 17th June 1986. 3. The Petitioner s grievance is that an order of suspension was issued on 18th of June 1986 4 and on that date itself he was served with a charge-sheet. According to him, the charge- sheet is completely vague and ambiguous. He submits that the charge-sheet alleges that the conduct of the Petitioner is unbecoming of a Senior Officer. There is an allegation of disregard and violation of the orders issued by the Director of the 1st Respondent on 27th December 1985 pertaining to the functions and procedures to be followed by the Training and Placement Committee and various directions issued by the Chairman etc. The charge further is that the Petitioner persistently flouted the instructions issued by the Director against the use of the word `Professor , Training and Placement `Division and `Head thereof. Thus, a deliberate attempt was allegedly made to create a false and misleading impression about the status of the office of the Training and Placement. Violation of 5 certain office orders has been alleged. It is further alleged that the Petitioner showed scant regard, decency and decorum and often used rude and impertinent language towards the Chairman of the Training and Placement Committee. He willfully remained absent from duty at the Training and Placement office on 4th of April 1986 without prior permission and knowledge of the Chairman of the Training and Placement Committee in spite of the fact that campus interviews were arranged on the said date. The last and the eighth charge was that he created a situation for his own financial benefits by assigning himself more lectures. 4. On being served with the charge-sheet and the statement of imputations in support of the articles of charges, the Petitioner was allowed to go through the record. He was also permitted to file his Written Statement 6 which he filed and the same is dated 14th August 1986. The Petitioner denied the charges. He, inter alia, raised objections by contending that he may have been appointed as Training and Placement Officer of the Institute but he took over the post from Professor S.L. Kanitkar, who was himself a Professor of the Institute. The Petitioner contended that after his appointment in January 1976 till May 15, 1985, he was working independently as a Training and Placement Officer without any interference from any one. He was discharging his duties and responsibilities of the post as specified in the Advertisement. He stated that on 15th May 1985, the present Director of the Institute formed the Committee known as `Training and Placement Committee as per the decision of the meeting of the Head of Department / Centres held on 24th April 1985. The 7 Petitioner was appointed as a Member- Secretary of the said Committee personally to hold a first meeting of the Committee. The first meeting was held on 18th July 1985. He stated that he was a Member-Secretary and terms of reference for consideration of the Committee were placed by him. However, nothing specifically was decided during next two successive meetings and, therefore, the Director issued two office orders. Placing reliance upon the Minutes of the Committee meeting, he stated that activities of the Training and Placement Division have been highlighted in the Annual Reports. He submits that only three meetings were held of the Committee and it is not as if he was, in any way, guilty of violation of that orders or directives. He gave his detailed explanation with regard to the other charges and stated that the duties of the post,to which he was appointed, have been performed 8 in the past as well by Professors. Rather they were Senior Professors of the Institute. Prior to this appointment, even the Petitioner was Professor and Head of Mechanical Engineering Department, College of Engineering, Goa. He relied upon the Minutes of the faculty meeting of I.I.T., Mumbai, dated 19th October 1974, item No.2 page No.2, item No.7 page No.4 and stated that designation and nature of duties would show that he has rightly been termed as a Professor and that is how even official stamp made by him reads. In such circumstances, it is not as if he has falsely held out himself as a Professor. 5. It is his case that the 1st Respondent ignored his explanation and the factual position in the record and wrongfully accepted the inquiry Report and proposed a penalty of Removal. He submits that even 9 the penalty proposed was challenged by the Petitioner inasmuch as he filed a Reply to the Show Cause Notice issued to him in that regard. Yet, ignoring the explanation, he came to be removed from services. Subsequently, his Appeal also has been dismissed. 6. Aggrieved by these orders, he has invoked the jurisdiction of this Court under Article 226 of the Constitution of India. 7. Upon the Petition being served, a Reply Affidavit came to be filed by the Respondents. They raised a plea that the Petitioner has falsely stated that he was a Professor. In fact, he was working as an Assistant Professor even at the Goa Engineering College in Mechanical Engineering Department. He was never a Professor thereat and that is a 10 clarification given by that Institution as well. In such circumstances, the Petitioner cannot claim to be a Professor. All other contentions and grounds in the Writ Petition have been specifically dealt with and denied in the Affidavit filed on 8th of June 1990. 8. It appears that this Writ Petition was placed earlier before the Court for hearing and final disposal on 30th September 2003, at which point of time, it was noticed that the Petitioner filed a statutory Appeal before the President of India. The Petitioner pointed out that his Appeal has been decided but he has not challenged the order in that behalf. In these circumstances, he was permitted to amend the Petition and challenge that order. Thereafter the Petition has been placed for hearing and final disposal. 11 9. The first contention of the Petitioner is that the impugned orders are vitiated by an error apparent on the face of the record. He submits that the orders are in clear breach and violation of the I.I.T. Act and the I.I.T. Bombay Statutes, 1962. Further, the Respondents have committed a breach of the Central Civil Services (CCA) Rules, 1965, concerning conduct of the domestic / departmental inquiry. He submits that there is no substance in any of the charges inasmuch as the resolution passed in the Fourth Committee meeting of Council of I.I.Ts held on 6th of October 1964 at New Delhi would show that the designation, status and position of Training and Placement Officers in all I.I.Ts along with their qualification, experience, nature of duties and responsibilities, scales / grade of pay and so on is something which could not have been ignored. He submits that the 12 penalties have been imposed by Authorities not competent to do so in terms of the relevant statutory provisions. 10. The Petitioner submits that in the grounds mentioned in the Writ Petition so also in the amended pleas, he has pointed out as to how the entire inquiry is vitiated and the orders so also the penalty are contrary to law. He further submits that there is a breach and violation of the principles of natural justice. The Authorities have acted unfairly, arbitrarily and unreasonably. He also submits that the Inquiry Officer in her report held that all the charges are duly proved. He submits that the Show Cause Notice dated 4th January 1989 is issued by the Director. The Petitioner urged that the Statutes of I.I.T. provide for various matters. Statute 13 provides for terms and conditions of the permanent employees. 13 Clauses (10), (11) and (12) of Statute 13 provide remedy to the aggrieved staff member to prefer Appeal to the Board or to the Appellate Authority. He submits that the orders dated 29th January 1991 and 4th February 1991 are non-speaking orders and do not indicate as to why the Petitioner s Appeal has been rejected. Further, these orders are passed in gross violation of the principles of natural justice. The merits of the matter were not taken into consideration. He submits that he has been suffering for the past more than 18 years and this is a clear case where this Court should exercise its jurisdiction under Article 226 of the Constitution of India and set aside the impugned orders. 11. The Petitioner in addition to making oral submissions has handed in a synopsis of Dates and events and a compilation of 14 Documents so also written arguments. He has highlighted the plea of incompetence of the Authorities in initiating the action and imposing punishment. He has also raised certain financial claims and has highlighted his health problems therein. 12. On the other hand, Mr.Patel appearing for the Respondents contended before us that the charges have been proved. The Petitioner was given full opportunity to defend himself at the inquiry. The Petitioner was given also an opportunity to take inspection of the relevant documents and other records. The Petitioner was given complete opportunity to place such material as he desired in his defence. The inquiry was thus held in compliance with the procedural rules so also General Principles of fairness and reasonableness. There is no substance in the grievance that principles of natural 15 justice have been violated. He submits that the Inquiry Officer was an independent person unconnected with the affairs of the Institute. Further, the Disciplinary as also the Appellate Authorities have carefully considered all pleas raised by the Petitioner but found no merit in them. Mr.Patel submits that the Institute is a highly reputed academic body. Its affairs are in the hands of experts in administration and related fields. It is not as if the entire Administrative machinery was against the Petitioner. Once, in such academic bodies the atmosphere of learning and intellect as also Excellency are to be promoted and preserved, then, the Authorities were compelled to act against the Petitioner. He submits that the Petitioner was all throughout violating the office orders. He did not perform the duties assigned to him in a spirit of co- 16 operation with the Management. He was adamant and insisted upon holding himself out as a full time Professor. He would make capital of some letters addressed to him from some bodies and on that basis, urged that he is a Professor. In these circumstances and by misinterpreting and misreading certain documents, he projected himself to be a senior member of the teaching faculty. 13. Mr.Patel was at pains to point out that there is no infirmity in the proceedings or the orders. The inquiry has been initiated by competent Authorities. Similarly, the Disciplinary Authority is also the competent forum. The Statutes have not been violated but have been fully adhered to. It cannot be said that somebody has usurped powers and imposed penalties arbitrarily and deliberately. There is no substance in 17 contention with regard to the mala fides. In these circumstances, the Court should not interfere in its writ jurisdiction. 14. Both sides have relied upon a number of decisions. However, in one recent decision in the case of Niraj Kumar Singh vs. Union Bank of India & anr. reported in 2008 (2) Bom. C.R. 237, to which one of us (Hon ble the Chief Justice) was a party, the settled principles have been reiterated. Suffice it to make a reference to the following observations of the Division Bench in the decision in Niraj Kumar Singh s case (supra):- 8. The first and the foremost question that has to be answered by the Court is whether the grounds taken by the petitioner while impugning the order of dismissal are the one which would fall within the scope of judicial review in terms of Article 226 of the Constitution of India. All the grounds that have been taken by 18 the petitioner are primarily based upon appreciation and/or reappreciation of the evidence. It is a settled principle of law that in exercise of its powers under Article 226 of the Constitution of India, the Court does not sit as a Court of Appeal on fact and law. The order essentially must be one which is perverse, not supported by any evidence or of the nature where statutory regulations have been violated, that too, to the prejudice of the delinquent officer. None of these conditions are satisfied in the present case. The concerned authorities had examined the entire evidence and thereafter found that the petitioner is guilty of the charges. Upon considering the reply submitted by the petitioner, the authorities imposed the punishment of dismissal from service vide order dated 28th February, 2007, against which the appeal preferred by the petitioner was also dismissed vide order dated 4th June, 2007, by giving cogent and proper reasoning. The order of the Appellate Authority has been based upon due application of mind and after consideration of the various contentions raised by the petitioner. It is well settled that the order of Dismissal or Removal of an Employee must be made by an Authority not Subordinate to the Appointing Authority. It 19 does not require that the order initiating the Inquiry or the Inquiry itself must be made by the Appointing Authority himself or by some person, not Subordinate to him (Article 311(1) of the Constitution). It is equally settled that in such cases prejudice or failure of Justice must be proved. 15. Further, there is another principle, which is equally well settled, namely, that when an Authority higher than the Disciplinary Authority itself imposes the punishment, the order of punishment suffers from no illegality, when no appeal is provided to such Authority. However, when an Appeal is provided to the higher Authority concerned against the order of the Disciplinary Authority or of a lower Authority and the higher Authority passed the order of punishment, the employee concerned is deprived of the remedy of Appeal which is a substantive right given to him by the rules / 20 regulations. An employee cannot be deprived of his substantive right. [See : AIR 1995 SC page 1053 at page 1055 (Para-5) Surjit Ghosh vs. Chairman and Managing Director United Commercial Bank & ors.] 16.We have to apply these principles while considering the reliefs sought in the present Petition. Since the Petitioner is appearing in person and he has been removed from the services of Respondent No.1, we have carefully considered the rival contentions. We have also perused the Petition and all annexures thereto, including the impugned orders. 17.The first contention of the Petitioner is that the inquiry is initiated and the charge-sheet is issued by an incompetent Authority. He does not dispute the Competence of the Disciplinary or the Punishing Authority. This point was raised even during the course of the inquiry. 21 Before the Inquiry Officer the relevant provisions of law and statutes applicable were relied upon. In paragraph 17 (internal page 22 running page 168) this very contention was urged. The Inquiry Officer has perused the appointment letter, the Institutes of Technology Act, 1961, the Statutes and Rules of Institute in force from time to time and concluded that there is no substance in the objection of the Petitioner that the Director could not have issued the charge-sheet. 18.A perusal of the charge-sheet would show that the Petitioner was placed firstly under suspension and thereafter Memorandum was issued charging him with misconduct. That is signed by the Director. 19.The position of the Director, as far as Respondent No.1 is concerned, is undisputed. Mr.Patel is right in his contention that the 22 inquiry has been initiated by a competent Authority. The Institutes of Technology Act, 1961, as amended from time to time, in Section 3 defines the term Board , in relation to any Institute, to mean the Board of Governors thereof. The term Chairman is defined to mean the Chairman of the Board. Section 9 in categorical terms states that the President of India shall be the visitor of every Institute. The Authorities of the Institute are set out in Section 10. One of the Authorities is the Board of Governors, the other is a Senate and thereafter such other Authorities as may be declared by the Statute to be the Authorities of the Institute. The composition of Board of Governors is set out in Section 11 and the Director is part of the same. [See : Section 11 (b)]. The terms of office and other provisions with regard to the Board are found in Section 12 and the functions of the Board are in Section 13. While it is true that the Board of 23 any Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all powers of the Institute but Section 13(1) itself makes an exception and states that the responsibility of superintendence, direction and control etc. as above, if provided for otherwise by the Act, the Statutes and the Ordinances, then, such functions can be performed by the persons contemplated thereunder. Thus, the broad functions and more particularly policy matters are to be performed by the Board, whereas day to day administration and management can be carried out by others. The composition of the Senate and its functions are not of much relevance to the present Petition. Section 16 provides for a Chairman of the Board and his duties. Section 17 is relevant for our purpose and is reproduced hereinbelow:- 24 17.(1) The Director of each Institute shall be appointed by the Council with the prior approval of the Visitor. (2) The Director shall be the principal academic and executive officer of the Institute and shall be responsible for the proper administration of the Institute and for the imparting of instruction and maintenance of discipline therein. (3) The Director shall submit annual reports and accounts to the Board. (4) The Director shall exercise such other powers and perform such other duties as may be assigned to him by this Act or the statutes or Ordinances. 20.A bare perusal of the same would indicate that the Director of each of the Institute shall be appointed by the Council with prior approval of the visitor and importantly the Director shall be the principal academic and executive officer of the Institute and shall be responsible for the proper administration of the Institute and for imparting of instructions and maintenance 25 of discipline therein. He can exercise such powers and perform such other duties as may be assigned to him by the Act or Statutes or Ordinances. Section 27 deals with the Statutes, whereas Section 28 provides for Ordinances. The composition of the Council is in Section 31. 21.As far as the powers of the Director are concerned, the Statutes in that behalf are clear. Statute 13 confers the powers on the Director to place any member of the staff under suspension and he can exercise such powers where disciplinary proceeding against him is contemplated or is pending. As far as the position of competent Authority is concerned, the Conduct Rules (Schedule-B) states that as far as the Director is concerned, the Board of Governors would be the competent Authority, whereas the Director himself is the competent Authority in case of other employees. 26 22.On a combined reading of the provisions of the Act, the Statutes and the Conduct Rules in relation to the status and powers of the Director and the extent of his authority, there is no hesitation in concluding that the complaint of the Petitioner with regard to the competence of the person initiating the inquiry and issuing charge-sheet is devoid of any substance. The Inquiry Officer is right in the conclusion that the Director was the competent Authority as far as the Petitioner is concerned and had full powers to issue the charge-sheet and initiate the inquiry. 23. In the case of South Central Railway Employees Co-op. Society vs. Labour Court & ors. reported in 1983-I L.L.J. 469 (judgment of a learned Single Judge of the Andhra Pradesh High Court)relied upon by the Petitioner, on facts, the Andhra Pradesh High Court concluded 27 that the act of the Secretary in issuing charge-sheet is illegal inasmuch as there is no delegation of power by the employer to the Secretary. In these circumstances, and noting the undisputed factual position that the conclusion with regard to the competence of the Authority has been arrived at by the Andhra Pradesh High Court. This decision is clearly distinguishable and would not apply to the facts of the present case. 24. In the decision of the Supreme Court in the case of The Marathwada University vs. Seshrao Balwant Rao Chavan reported in AIR 1989 SC page 1582, the facts were that the Vice Chancellor sought to initiate proceedings against Mr.Chavan after the competent Authority, namely, the Academic Council / Senate closed the proceedings and exonerated Mr.Chavan. In that context, it is held that the Vice Chancellor has no such power nor could he 28 resort to his powers to deal with any emergent situation and take the Impugned action. In that case, the Supreme Court upheld the objection with regard to the competency of the Vice Chancellor to impose punishment by referring to the Act and Statute in Question. Once again, the distinction with regard to the position of the Authority in this case and in our case, must be noticed and if due cognizance is taken thereof, then, even this decision is distinguishable. 25.In the above circumstances, we see no substance in this contention of the Petitioner. 26.The other contention raised by the Petitioner is with regard to the conduct of the inquiry and it being vitiated for non-observance of the principles of natural justice. In this regard, we have to apply the settled principles that this is not a Court of Appeal and we cannot go