1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6219 OF 2009 Mateen Khan Lateef Khan .. Petitioner Vs Khairul Islam Higher Education Society and Ors .. Respondents Alok Gupta i/b Mihir Desai for the petitioner Shri. U.N. Shah for respondent no. 1 Shri. A.G. Vanarse, AGP for State CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 26th August, 2009 P.C.: 1. Heard the learned counsel for the petitioner - the original complainant, the learned counsel for the respondent - education institution and learned AGP for the State. 2. Rule. By consent rule is made returnable forthwith and the matter is heard finally. Rma wp6219-09.sxw 2 3. The petitioner was initially appointed as a peon in the college run by respondent 1. Thereafter, he came to be appointed as library attendant in the said college. After inquiry, by order dated 29th April, 2008, he came to be terminated w.e.f 30th April, 2008. Being aggrieved thereby, he preferred appeal bearing no. 60 of 2008 before the University and College Tribunal. The said appeal came to be dismissed by order dated 4th February, 2009. Hence, this petition. 4. Three charges were levelled against the petitioner i.e refusal to accept communication served to him according to the rules. This pertains to the incident dated 4th October, 2006 when the Registrar of the college I.R. Mulani had called the petitioner in his cabin and handed over a memo dated 4th October,2006 for not wearing uniform while on duty. The second charge was about disorderly behaviour, threatening and use of abusive language by the petitioner. The details of the allegation was that on 5th October, 2006 at about 3.30 p.m, the petitioner barged into the office of the principal in a very disorderly manner, shouting at the top of his voice threatening, intimidating, using intemperate and foul language. Then the petitioner went to the Rma wp6219-09.sxw 3 cabin of Registrar I.R. Mulani confronted him in a very angry and arrogant manner and questioned him as to why he submitted a written complaint against him to the principal. A good number of office staff and attendants assembled in the office. The Registrar I.R. Mulani then submitted written complaint in respect of the said incident on the following day. The third charge was that the petitioner had submitted a complaint letter dated 8th December, 2006 to the Secretary / Chairman of Maharashtra College Karmachari Union mentioning therein that Mr. Fareed Ahmed (Head Clerk) had taken bribe from hims for favouring the work of fixation of pay scale. 5. In respect of these three charges, the management has examined three witnesses i.e Mr. I.R. Mulani - Registrar of the College, Fareed Ahmed - Head Clerk of the college and Dr. Shakil M. Hurzuk - Principal of the college. All the three witnesses were cross-examined at length. They have in their evidence established all the three charges against the petitioner. Their deposition is not shaken in their cross- examination. Hence, the tribunal has rightly observed that there is no perversity in the findings recorded by the Enquiry Officer. Rma wp6219-09.sxw 4 6. The learned counsel for the petitioner submitted that the petitioner did not know English language and he was served charge sheet and statement of allegations in English and the proceedings before the Enquiry Officer were conducted in English and hence, the petitioner did not have any opportunity to defend himself. It was also submitted that no time was given to the petitioner to defend himself in the enquiry proceedings. As far as this aspect is concerned, it is seen that it is an admitted fact that the petitioner had filed his reply in English. He was working as a laboratory attendant in the college and therefore, he is expected to have knowledge of English. Moreover, he was represented by his representative before the Enquiry Officer who never claimed that he did not understand English. Thus, I do not find much merit in these submissions. 7. The learned counsel for the petitioner submitted that he was not given time and opportunity to properly cross-examine the witnesses. As far as this aspect is concerned, there is nothing on record to indicate that the petitioner had asked for adjournment at any point of time to cross-examine the witnesses and that such applications for Rma wp6219-09.sxw 5 adjournment were rejected by the Enquiry Officer. In fact, record shows that whenever the petitioner sought adjournments on any ground, he was given such adjournments. The report also shows that all the three witnesses examined by the management were cross examined by the representative of the petitioner at length and covering all points. Thus, I find no substance in this allegation. 8. The learned counsel for the petitioner submitted that the petitioner was not allowed to examine any witnesses. As far as this aspect is concerned, the petitioner had not examined himself and in fact, submitted written praecipe that he did not want to examine himself and that he would be submitting only written arguments which he did. However, it is true that he has preferred an application on 3rd December, 2006 before the Enquiry Officer requesting that witness Mukhtar Ahmed Choudhary be allowed to be examined as defence witness Even Choudhary had filed written praecipe before the Enquiry Officer that he wanted to give evidence. The application was opposed by the respondent and therefore, a detail order was passed by the Enquiry Officer rejecting the application. It is pertinent to note Rma wp6219-09.sxw 6 that in the statement of allegation it is mentioned that the petitioner had given complaint dated 8th December, 2006 to the Secretary / Chairman Maharashtra College Karmachari Union in which the petitioner mentioned that Fareed Ahmed, Head Clerk had taken bribe from him for favouring the work of pay fixation In reply to this charge, the petitioner admitted to have made this allegation and further contended that in fact he paid bribe to the Head Clerk. He has not stated the name of this witness Mukhtar Ahmed Choudhari as being present when the alleged bribe was given The petitioner had also not given any list of witnesses mentioning the witnesses to be examined on his behalf. Moreover, one representation dated 7th December, 2006 was given by Mumbai Ashaskiya Vidyalaya Shikshan Karmachari Union to the principal of the college along with the statements of some of the employees including the said witness Mukhtar Ahmed Choudhari. In that statement also no where it was stated that Mukhtar Ahmed Choudari was also involved in the alleged payment of bribe by the petitioner to the said head-clerk. There is no material to show that Mukhtar Ahmed was also involved in alleged payment of bribe by the petitioner to the headmaster. In such Rma wp6219-09.sxw 7 circumstances, the Tribunal had rightly held that the Enquiry Officer's finding that it was an afterthought is correct. This is particularly so when the petitioner himself had admitted in his written reply to the charge sheet and statement of allegations that he had given bribe to the head-clerk. 9. The learned counsel for the petitioner submitted that as far as refusal to accept the memo is concerned, he has placed reliance on the circular dated 1st September, 2006 which states that all class IV employees have been provided with two sets of uniforms. He pointed out that the petitioner is not a class IV employee but he is a laboratory attendant and the circular does not cover the laboratory attendant. Hence, the learned counsel for the petitioner submitted that the petitioner did not accept the memo but he only asked the contents to be explained to him. It would be pertinent to note that the appellant had submitted a letter to the principal wherein he has admitted all the three charges before disciplinary action was taken against him. No such stand was taken by him earlier that the petitioner did not accept the memo but he asked only that the contents be explained to him. Rma wp6219-09.sxw 8 Hence, at this belated stage, it cannot be taken into consideration. 10. Looking to the material on record, it cannot be said that the petitioner was not given fair and reasonable opportunity to defend himself. No error is found in the order of the Tribunal holding that there is no perversity in the findings recorded by the Enquiry Officer holding that all the three charges are proved against the petitioner. 11. The learned counsel for the petitioner submitted that the punishment awarded is disproportionate to the charges of misconduct proved against the petitioner. The order of termination mentions that it is a removal from services of college with all the benefits,hence,it cannot be said the punishment is disproportionate. However, even otherwise it is seen that the charges which were proved against the petitioner were all of serious nature. It is for the management to decide what penalty should be imposed on the petitioner and normally the Tribunal does not interfere with the same unless the penalty is found to be shockingly disproportionate to the charges proved. The petitioner had refused to accept the communication from the Registrar Rma wp6219-09.sxw 9 who was trying to serve on him a memo and behaved in a disorderly manner. On 5th October, 2006, he was in the office of the principal and he behaved in a disorderly manner shouting at the top of his voice. Moreover, the petitioner had threatened and used intemperate and filthy language against the Registrar and the Principal. Hence, the Tribunal was right in observing that the respondent is an educational institution and such type of behavior could not have been tolerated by the management. The petitioner had also complained that he paid bribe and he paid bribe to the Head Clerk for doing the work of his fixation of pay. This was also a serious charge. It is seen that the petitioner is indulging in giving of bribes. Looking to these facts, I find that there is no merit in the allegation that the penalty of removal from service was disproportionate to the charges proved against the petitioner. 12. In view of above, no case is made out for interference. Writ petitioner is dismissed. (SMT. V.K. TAHILRAMANI, J) Rma wp6219-09.sxw 10 Rma wp6219-09.sxw