1 wp9691-10.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9691 OF 2010 Shri Magar Annasaheb Sadashiv .. Petitioner Vs. The Principal, Dr.Ghali College and Ors. .. Respondents Mr.Subhash Langote with Mr.V.A.Madane for the petitioner Mr.S.D.Rairikar, A.G.P. for respondent no.4 Mr.S.S.Patwardhan for respondent nos.1 and 2 Mr.Rajdeep S. Khadapkar for respondent no.3 CORAM: K.K. TATED, J. DATE: 1st JULY, 2011 P.C. 1. Heard the learned counsel for the parties. 2. The short issue involved in the present petition is whether the petitioner original appellant be allowed to place on record additional documents in the form of affidavit in pending Appeal no.28/97(S). 3. The petitioner original appellant filed present writ petition under Article 227 of the Constitution of India challenging the order dt.18.10.10 passed by the learned Presiding Officer, below Exh.24 and 26 in Appeal No.28 of 2 wp9691-10.doc 1997(S) rejecting to place on record certain documents and affidavit of evidence. 4. The petitioner was appointed as a Lecturer in the respondent-College. His services were terminated because complaints were received regarding the performance and behaviour of the petitioner. They were duly enquired into by the respondent Management. The petitioner did not file the reply to the satisfaction of the Management. Therefore, the enquiry report was against the petitioner. The services of the petitioner were terminated w.e.f.20.6.97. 5. Being aggrieved by the said termination order the petitioner preferred appeal being appeal no.28 of 1997 before the University and College Tribunal, Pune. 6. Initially the said appeal was dismissed. Thereafter the petitioner preferred Writ Petition No.2555 of 1998 before this court. In the said Writ Petition, this court (Coram: Smt.Nishita Mhatre) passed order dt.13.8.2010 and set aside the judgment and order dt.6.2.98 passed by the University & College Tribunal, Pune / Shivaji University, Pune in Appeal No.28 of 1997(S) and the matter was remanded to the University and College Tribunal for a fresh hearing. This court granted liberty to the parties to place on record such additional documents including Resolutions, Statutes etc. which they may wish to rely on, to establish their respective cases. 7. Pursuant to the said liberty, the petitioner original appellant filed 3 wp9691-10.doc application dt.29.9.10 being Ex.24 and application Ex.26 dt.29.9.10 for placing on record certain documents and affidavit of petitioner and other two persons. The said application was opposed by the respondent college by filing their reply. 8. After considering the submissions made by both the parties, the learned Presiding Officer of College Tribunal partly allowed petitioners application below Ex.24 to the extent of placing documents on record at Sr.No. 5, 6 and 7 in respect of payment of salary during the period of employment. Other documents and affidavit of evidence were rejected by the learned Presiding Officer. 9. The learned counsel appearing for the petitioner submits that initially the petitioner appeared before the Tribunal as party in person and therefore it escaped his attention to place all the documents and necessary affidavits on the record. He further submits that in the application Exh.26, the petitioner specifically stated that for want of knowledge of the procedure and as he was not represented by any legal practitioner, he could not fully avail of the liberty to represent his case properly before the Tribunal and as such, the documents and affidavits, which could not be then filed, were now being placed on record. 10. He further submits that the Tribunal erred in holding that under section 59 of the Maharashtra Universities Act, petitioner is not entitled to place on record affidavit in the form of evidence. He further submits that 4 wp9691-10.doc section 60 of the Maharashtra Universities Act, 1994 states that the Tribunal shall have the same powers as are vested in an the appellate court under the Code of Civil Procedure, 1908. He submits that once the Code of Civil Procedure is applicable then, the petitioner has right under Order 41 Rule 27 to place on record additional documents and affidavit of evidence also. Therefore, the impugned order passed by learned Presiding Officer dt.18.10.10 is liable to be set aside to the extent it did not allow the petitioner to place on record remaining documents at Sr.No. 1 to 4 and three affidavits and to allow his application dt.29.9.10 being Ex. 24 and 26. 11. On the other hand, the learned counsel for respondent nos.1 and 2 vehemently opposed the present petition. He submits that this Hon ble ’ Court by order dt.13.8.10 in Writ Petition No.2555 of 1998 granted liberty to the petitioner to place on record such additional documents including resolution, statutes and not affidavit of evidence. 12. He further submits that the application filed by the petitioner being Ex.24 and 26 is not according to the provisions of Order 41 Rule 27 of Civil Procedure Code. He submits that as per Order 41 Rule 27 of the Code of Civil Procedure, the parties seeking to produce additional evidence, have to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed 5 wp9691-10.doc against was passed against him. 13. He submits that in the present case, the petitioner failed to point out any reason according to Order 41 Rule 27 of the Code of Civil Procedure and therefore, there is no substance in the present petition and same is liable to be dismissed with costs. 14. In similar way, the learned counsel for respondent no.3 vehemently opposed the present Writ Petition. He submits that this court allowed the petitioner to place on record only additional documents in respect of resolution, statutes, etc. Therefore, there is no question of allowing the petitioner to place on record affidavit of evidence. He further submits that initially when the petitioner filed an appeal before the Tribunal, these documents were with the petitioner. The petitioner wants to bring on record, the documents dt.24.3.97 as stated in list of documents to Ex.24 which were very much available when the petitioner filed appeal before the Tribunal and same cannot be allowed at this belated stage. Therefore, there is no substance in the present petition and same is liable to be dismissed. 15. In the present case, in Writ Petition No.2555 of 1998, this court by order dt.13.8.10 allowed the petitioner to place on record certain documents. According to the said liberty, petitioner made applications below Ex.24 and 26 for placing on record additional documents. In his application, he explained the reason why those documents and affidavit of evidence were 6 wp9691-10.doc not placed on record. In para 2 of application at Ex.26, the petitioner explained that earlier he appeared party in person and for want of knowledge of the procedure, he did not place those documents on record. 16. In the present case, the learned Presiding Officer rejected the petitioner s’ applications below Exh.24 and 26 mainly on the ground that in appeal filed under section 59 of the Maharashtra Universities Act, 1994, the petitioner is not entitled to place on record affidavits in the form of evidence. It is true that normally in a revision, writ or other proceedings against the order passed in domestic enquiry, the authority herein, the revision, writ or other proceedings does not re-appreciate the evidence adduced before the enquiry officer. However, section 60 of the Maharashtra Universities Act, 1994 provides that the Tribunal shall have the same powers as are vested in an Appellate Court under the Civil Procedure Code. Section 60 of the Maharashtra Universities Act, 1994 reads thus: 60. “ General powers and procedure of Tribunal:- (1) For the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an appellate court under the Code of civil Procedure, 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under this Act. (2) The Presiding Officer of the Tribunal shall decide the procedure 7 wp9691-10.doc to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sittings. (3) Every appeal shall be decided as expeditiously as possible. In every case, endeavor shall be made by the Tribunal to decide an appeal within three months from the date on which it is received by the Tribunal. If the Tribunal is unable to dispose of any appeal within this period, it shall put on its record the reasons therefore. 17. The Appellate Civil Court is entitled to re-appreciate the evidence and reach to its own conclusion. As per Civil Procedure Code, under Order 41 Rule 27, if the applicant makes out case as stated therein for not placing additional documents on record, he is entitled to do so at the appellate stage also. Even as per amended provisions of Civil Procedure Code, parties can adduce their evidence by way of affidavits. As the learned Presiding Officer rejected petitioner s application solely on the ’ ground that there is no provision under section 59 of the Maharashtra Universities Act, 1994 to place on record the affidavit in the form of evidence, the order of the Presiding Officer is not sustainable because section 60 of the said Act specifically states that Civil Procedure Code is applicable and as per Civil Procedure Code parties can adduce their evidence by way of affidavits and also under Order 41 Rule 27 can place original documents on record, if they put in sufficient reasons for not filing them at initial stage. Apex Court in the matter of Jaipur 8 wp9691-10.doc Development Authority vs. Smt. Kailashwati Devi reported in AIR 1997 SC 3243 held that it is not permissible to restrict the sub-clause (aa) of Rule 27 of Order 41 of Civil Procedure Code for the benefit of only those who have adduced some evidence in the trial court. Para 6 of that judgment reads thus: (6) THE intention of the sub-rule, in our view, is that a “ party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial court, should be enabled to produce the same in the appellate court. The sub-rule mentions the conditions which must be complied with by the party producing the additional evidence, namely, that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him" in the trial court. It is not one of the conditions that the party seeking to introduce additional evidence must have also been one who has led some evidence in the trial court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub- rule between a party who has produced some evidence in the trial court and one who has adduced no evidence in the trial court. All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. It is not permissible to restrict clause (aa) for the benefit of only those who have adduced some evidence in the trial court.” 18. Considering these facts, I am of the opinion that when section 60 of the 9 wp9691-10.doc Maharashtra Universities Act specifically states that as the provisions of Civil Procedure Code are applicable to the proceedings of the Tribunal, the Tribunal should have allowed the application filed by the petitioner, in the facts and circumstances of the present case. 19. Considering the submissions made by learned counsel for the petitioner, the impugned order passed by Tribunal dt.18.10.10 below Ex.24 and 26 which is against the petitioner is set aside. The application dt.29.9.10 being Ex.24 and 26 filed by the petitioner is allowed and the affidavits of evidence be admitted on record, subject to the liberty to the other side to cross-examine if they want to challenge what is stated by the witnesses on affidavit. No order as to costs. 20. Both the counsel pointed out that as per order dt.13.8.10 in Writ Petition No.2555 of 2008, this court directed Tribunal to complete the trial of appeal within six months. That time is already over. Therefore, time to decide the Appeal no.28 of 1997 is extended till 31.12.2011. 21. Petition is disposed of accordingly. (K.K. TATED, J.)