WP/4927/2001 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4927 OF 2001 University of Pune ... Petitioner V/s. Professor (Dr.) Durga Dixit ... Respondent Mr. Vishal Talsania with Ms. Pallavi Dedhia i/b. Mr. Sanjay Udeshi & Co. for the Petitioner. Mr. R.M. Haridas with Mr. Sumit Khaire i/b. Mr. P.N. Joshi for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATED : 10 TH DECEMBER, 2010. ORAL JUDGEMENT : 1. The petitioner is the University of Pune. It has impugned the order dated 20th June, 2001 passed by the Presiding Officer, Pune/Shivaji University and College Tribunal, Pune, (for short “the Tribunal”), in Appeal No.8 of 1995 (P). By this order, the Tribunal has concluded that the termination of services of the respondent is illegal and has, therefore, set aside the dismissal order. The Tribunal has further directed that the domestic enquiry which was conducted earlier should be reopened for allowing the delinquent to lead evidence in her defence despite the fact that the respondent had reached the age of superannuation in 1998. The Tribunal further directed that a new Enquiry Officer should be appointed and that the enquiry should be completed within six months from the date of its commencement. WP/4927/2001 2 2. The respondent was appointed as a “Lecturer” in the Department of Hindi of the University from 17th March, 1974. She was later appointed as a “Professor” in the same Department, initially on probation for a period of two years from 27th January, 1986. However, since her confidential reports during her probation period as a “Professor” were not upto the mark, she was reverted to her original post of a “Lecturer” in 1988. She was found unfit for promotion by three successive Selection Committees. Ultimately, the fourth Committee which considered the respondent’s suitability for promotion submitted a favourable report in her favour, which was accepted by the Executive Council. Accordingly, the respondent was appointed to the post of “Professor” from 3rd March, 1989 on a permanent basis. Being the sole Professor in the Department of Hindi, the respondent was designated as the Head of the Department under Statute 413 from 3rd March, 1989. However, the University received several complaints against her. The University found that the respondent was negligent about financial matters and had misrepresented her academic achievements. To curb the unrest in the Department against the respondent, the University took remedial measures of appointing Dr. A.P. Dikshit as Head of the Department of Hindi w.e.f. 14th August, 1989 as a stop-gap arrangement. Dr. Dikshit was the “Professor Emeritus in Hindi” and had served the Department of Hindi of the University for approximately 20 years earlier. He, in fact, was the Guide of the respondent when she pursued her Doctoral studies. The appointment of Dr. Dikshit annoyed the respondent and, therefore, she stopped teaching and disobeyed all instructions/ directions of both, WP/4927/2001 3 the Head of the Department as well as the Vice Chancellor of the University. It appears that she challenged the appointment of Dr. Dikshit by preferring Writ Petition No.4280 of 1989 in this Court. Though the Writ Petition was admitted, no interim relief was granted in the respondent’s favour. According to the University, the respondent had instigated one Ram Shedge to file proceedings in the Civil Court against the appointment of Dr. Dikshit. However, the attempts of the respondent and Ram Shedge to ensure that Dr. Dikshit did not continue as the Head of the Department proved to be futile. 3. A fact finding committee was appointed by the Executive Council of the University under Statutes 433 and 433A to enquire into the numerous complaints received against the respondent. The committee submitted its report indicating that, prima facie, a case had been made out against the respondent for commission of acts of misconduct involving moral turpitude and willful and persistent neglect of duty. Accordingly, an Enquiry Officer was appointed by the University. 4. The respondent preferred Civil Suit No.1148 of 1991, seeking an injunction restraining the Executive Council from taking any action on the basis of the report of the fact finding committee. The injunction, which had been granted temporarily, was vacated by the trial Court and the Appeal preferred by the respondent against that order was rejected. WP/4927/2001 4 5. A charge sheet was issued to the respondent on 30th April, 1992 in which several acts of misconduct allegedly committed by her had been enumerated. A domestic enquiry was conducted against the respondent. She was permitted to be represented by an Advocate at the enquiry. According to the University, she continuously sought adjournments and thus protracted the enquiry. The University examined 21 witnesses in support of the charges levelled against the respondent. These witnesses were cross examined by the Advocate for the respondent. The oral evidence on behalf of the University was closed on 8th June, 1994 when neither the respondent nor her Advocate was present on that day. She had sought an adjournment telephonically since her mother was unwell. The enquiry was, therefore, adjourned not only on 8th June, 1994 but on several dates thereafter. An adjournment was sought again on 8th July, 1994 when the Enquiry Officer refused the adjournment and closed the enquiry. 6. Being aggrieved by that order passed by the Enquiry Officer refusing her an adjournment and closing the enquiry, the respondent herein preferred Writ Petition No.3990 of 1994. The Division Bench of this Court rejected the Petition by concluding that the Enquiry Officer could not be faulted for having refused an adjournment. However, the Division Bench observed that it would be open for the petitioner, i.e. the respondent herein, in that case to urge all contentions including the contentions raised in the Writ Petition No.3990 of 1994 in case she was required to challenge the final order passed by the University. The respondent was WP/4927/2001 5 directed to submit a statement of defence, as provided under Statute 433(A)(3) (B). The Enquiry Officer finally submitted his report on 2nd January, 1995, after considering the submissions of the respondent’s lawyer. The Management Council of the University considered the report submitted by the Enquiry Officer and dismissed the respondent from service on 16th March, 1995. 7. Being aggrieved by the order passed, the respondent preferred Appeal No.8 of 1995 before the Tribunal on 20th December, 1996. An application was filed by the respondent seeking a direction from the Tribunal against the University to reopen the enquiry and to permit her to lead evidence before the Enquiry Officer. That application was granted. Being aggrieved by the order, the University preferred Writ Petition No.619 of 1997. On 4th February, 1997, this Court stayed the order of the Tribunal. The respondent withdrew her application before the Tribunal on 21st April, 1997. By the impugned order passed on 20th June, 2001, the Tribunal set aside the dismissal order passed against the respondent and directed that the enquiry should be reopened. This order was passed although the Tribunal was aware of the fact that the respondent had retired. 8. Mr. Talsania, the learned Counsel appearing for the University, submits that the Tribunal has unwarrantedly passed the impugned order. According to him, the Enquiry Officer had waited long enough for the respondent to appear and participate in the enquiry being held against her. However, the respondent had deliberately protracted the enquiry. He submits that the record of the enquiry WP/4927/2001 6 proceedings was available before the Tribunal and after perusing the same, the Tribunal ought to have dismissed the Appeal. He further submits that copies of all the documents relied on by the University were tendered to the respondent. He further submits that the Tribunal has incorrectly held that the enquiry was vitiated and that the principles of natural justice were violated by the University. The learned Counsel points out that the Tribunal has erred in observing that the evidence of the respondent has been “abruptly closed” which had resulted in failure of justice to the respondent. Ample opportunity was afforded to the respondent to produce documents which she wished to rely on before the Enquiry Officer, according to the learned Counsel. She failed to take advantage of the adjournments granted to her by the Enquiry Officer by producing the necessary documents on record, submits the learned Counsel. He draws my attention to the fact that the Tribunal has not bothered to consider whether the findings arrived at by the Enquiry Officer were perverse. He urges that assuming the enquiry may be vitiated, either because procedurally there was a defect in conducting the enquiry or because the findings of the Enquiry Officer are perverse, it was necessary for the Tribunal to permit the University to justify the order of dismissal before the Court itself. The Tribunal not having done so, it is necessary to set aside the order passed by it, urges the learned Counsel. 9. Mr. Talsania has relied on various judgments of this Court as well as the Supreme Court in support of his submission that the Enquiry Officer need not WP/4927/2001 7 wait endlessly for a delinquent employee to appear before him before closing the enquiry. I will presently advert to those judgments. 10. Mr. Haridas appearing for the respondent has submitted that the Tribunal’s decision cannot be termed as “erroneous”. According to him, although the respondent had retired, she wanted to ensure that she was exonerated of the black mark against her. He submitted that the respondent had put in over 20 years of service with the University and she could not have been dismissed in such a perfunctory manner. According to him, the alleged complaints against the respondent were fabricated and not genuine. He submits that the adjournments which were granted while the University was leading evidence before the Enquiry Officer were granted for several days, whereas when the respondent was expected to lead her evidence, the adjournments were granted for hardly two days. He points out that a charge sheet was served on the respondent on 30th April, 1992, whereas the enquiry proceedings started only on 28th May, 1992. He further submits that the findings recorded by the Enquiry Officer are perverse. He also draws my attention to the fact that the termination of services of the respondent was not in accordance with the rules, as instead of 17 members of the Executive Council, only 4 members had taken the decision to dismiss the respondent. Although the respondent has reached the age of superannuation, Mr. Haridas impassioned plea is that the respondent must be given an opportunity to vindicate herself. WP/4927/2001 8 11. I have perused the order of the Tribunal and, in my opinion, the Tribunal has committed a serious error by allowing the Appeal. The Tribunal has found that the enquiry was vitiated because the respondent was not given adequate opportunity to defend herself. It is held that the Enquiry Officer was prejudiced against the respondent which had led him to close the enquiry without affording the respondent a further opportunity to lead her evidence. The number of occasions on which the respondent sought adjournments, the number of days for which they were granted and the reasons for the adjournments have been tabulated in the Petition. On perusal of this table, I find that more than adequate opportunity has been granted to the respondent to defend herself in the enquiry proceedings. On almost every occasion, when the adjournment was sought by the respondent, it was either because her Advocate was absent or because she personally could not attend the enquiry for one reason or the other. The respondent could not have expected the enquiry proceedings to be prolonged interminably. In fact, after the evidence of the petitioner was closed, the respondent was given an opportunity to lead her own evidence. Even at this stage, the respondent did not co-operate and continued seeking adjournments on one ground or the other. Ultimately, the Enquiry Officer closed the enquiry proceedings. This procedure adopted by the Enquiry Officer cannot be faulted. It appears from the record that the respondent and/or her Advocate did not choose to be present before the Enquiry Officer on numerous occasions due to which time and again the enquiry was adjourned. Every possible indulgence has been shown WP/4927/2001 9 to the respondent in order to ensure that no injustice is done to her. In my opinion, therefore, the Tribunal has erred in allowing the Appeal and further directing that a domestic enquiry should be held. 12. In the case of Mulji Mangal of Bombay vs. The India Water Proofing Company & Ors., reported in 1988 (1) CLR H.C.78, the Division Bench of this Court has held that there is no rule that an Enquiry Officer should adjourn the hearing of the enquiry on the first occasion. The Division Bench observed that the adjournment was sought on the ground that the union leader was not well and, therefore, could not defend the workman. This Court found that such a reason was vague and the Enquiry Officer had not committed any error by proceeding with the enquiry on the first date. 13. In the case of Amar Dye-Chem Ltd. vs. M.R. Bhope & Anr., reported in 1994 (3) Bom.C.R. 436, a similar view was taken by a learned Single Judge of this Court. It was observed that the adjournments were granted to the delinquent- workman on several occasions after which he was informed that no more adjournments would be granted to him. In these circumstances, it was held that the Tribunal had not erred in proceeding with the enquiry against the charge sheeted workman, refusing the adjournment sought by him on a particular day. It was observed that it is not a right of the charge sheeted workman to ask for adjournments as and when he likes or the duty of the Enquiry Officer to act as per his dictates. WP/4927/2001 10 14. Similarly in the case of Hislop Education Society, Nagpur vs. Presiding Officer, University College Tribunal, Nagpur & Ors., reported in 2009 (6) Mh.L.J. 419, a learned Single Judge of this Court has held that a Principal of a prestigious College was expected to behave with responsibility even as a delinquent. Mr. Talsania, the learned Counsel for the petitioner, has submitted that, similarly, in the present case, the respondent was not a lay person but the Head of the Department of Hindi in Pune University. She was expected to act with a certain amount of rectitude while appearing before the Enquiry Officer. She has failed to do so. The Tribunal has decided the matter contrary to the principles laid down in the case of Hislop Education Society (supra). 15. In the case of T.V. Ramana Murthy vs. The Andhra Pradesh Agricultural University, reported in 1990 I CLR H.C.A.P. 83, a learned Single Judge of the Andhra Pradesh High Court has observed that the rules of natural justice cannot come to the rescue of a person who protracts the enquiry under some pretext or the other. 16. Similarly, in the case of Brooke Bond India (Pvt.) Ltd. vs. S. Subba Raman & Anr., reported in 1961 SC 526, the Supreme Court has held that when a workman withdraws from the enquiry, the Enquiry Officer cannot be faulted if he continues with it ex-parte. WP/4927/2001 11 17. The underlying thread running through all the aforesaid judgments is that a delinquent workman cannot seek an adjournment before the Enquiry Officer as a matter of right. There must be sufficient cause made out before an adjournment is granted. The Enquiry Officer is not bound to adjourn the enquiry on the dictates of the workman. A fair and adequate opportunity is required to be given by the Enquiry Officer to the workman. Such opportunity would also include granting of adjournment. However, it would be within the realm of discretion of the Enquiry Officer to grant adjournments. Any refusal of an adjournment would not necessarily result in the breach of the principles of natural justice and fair play. A delinquent workman cannot seek adjournments interminably without there being any sufficient cause for the same. Thus in the present case it cannot be said that the enquiry officer was biased or that there was any procedural defect in the enquiry. 18. Even if the domestic enquiry is found to have been held in a procedurally fair and proper manner, the matter does not rest there. The Tribunal would still have to ascertain whether the findings of the Enquiry Officer are perverse. 19. The Tribunal would have to consider the evidence led before the Enquiry Officer and decide whether the findings or the conclusions drawn by the Enquiry Officer are based on the evidence before him. The Tribunal is expected to assess the evidence and decide whether the conclusions drawn could be termed as perverse. It is only when the Tribunal finds that the findings of the Enquiry Officer WP/4927/2001 12 are perverse, that the Tribunal must set aside those findings and direct a fresh enquiry to be held. The Tribunal in the present case has directed a fresh enquiry to be held without considering the findings, probably because it has held that the enquiry was vitiated because the respondent had not been given adequate opportunity to defend herself. 20. Another issue which has been raised in the Appeal Memo filed before the Tribunal is that the decision to dismiss the respondent was taken by only 4 members of the Executive Council and not all the members, as required in law. That issue will also have to be considered by the Tribunal. 21. In these circumstances, the order dated 20th June, 2001 passed by the Presiding Officer, Pune/Shivaji University and College Tribunal, Pune in Appeal No.8 of 1995 (P) is set aside. 22. The Appeal No.8 of 1995 (P) is remanded to the Pune/Shivaji University and College Tribunal, Pune to decide the following issues : (i). Whether the findings of the Enquiry Officer are perverse? and; (ii). Whether the dismissal order has been passed in accordance with the law prevailing when it was issued? 23. The Writ Petition is allowed. 24. Rule made absolute. No order as to costs.