-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2034 OF 1997 PETITION NO.2034 OF 1997 PETITION NO.2034 OF 1997 Vaijanath M. Kalase ...Petitioner vs. Ratnagiri Education Society & Ors. ...Respondents Mr.Sanghraj D. Rupwate with Mr.Gajanan P. Lasme for the Petitioner Mr.A.V.Bukhari with M.B.V.Bukhari for Respondent Nos.1 & 3 Mr.Rui Rodrigues with Mr.B.V.Phadnis for Respondent Nos.4 & 5. CORAM: CORAM: CORAM: DR.D.Y.CHANDRACHUD,J. DR.D.Y.CHANDRACHUD,J. DR.D.Y.CHANDRACHUD,J. DATE DATE DATE : JULY 3, 2008. : JULY 3, 2008. : JULY 3, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The Petition impugns an order passed by the Presiding Officer of the College Tribunal on 9th January 1997 by which the Appeal filed by the Petitioner, questioning his dismissal from service on 27th September 1995, was rejected. 2. The first Respondent is a public trust registered under the Bombay Public Trusts Act,1950 and conducts an Arts, Commerce and Science college at Ratnagiri. The Petitioner was appointed as a lecturer on 7th August 1980 and was teaching the Foundation course and Rural Development. On 21st October 1994, the Petitioner was suspended pending an enquiry into an allegation of misconduct. The allegation against the Petitioner is to the effect that while conducting the Foundation Course for the First Year B.A.students, he used -2- obscene,filthy and abusive language towards the students in the classroom; and that in particular, he used vulgar language against women students. The statement of allegations annexed to the charge was to the following effect : "(1) That you while conducting the periods of the Foundation Course of First Year B.A. used obscene and filthy and very abusive language like ‘Haramkhor’ and ‘Bhedrat’ and used other filthy words. You have also given wrong teachings to the students of the said class by saying ‘Ram was thief and Ravan was very decent’. Further you have also made statements like ‘Brahmins are liars and Haramkhor’. You talk mostly on irrelevant things not concerning with the syllabus. These above facts have been recorded in a statement by a student Shri Mane Suryakant Vinay of First Year B.A. on 28-9-1994. (2) That you intentionally use very obscene and vile language without bothering that there are lady students in the class. You used words like ‘Nalayak’ and ‘Bajari’ (having low character) to the lady students. You have asked the lady students to get out of the class. You also insult the parents of the students by using abusive language. . The above facts have been recorded in a Statement made by -3- Kum. Deorukhakar Aruna Pandurang of the First Year B.A. Class on 28-9-1994. (3) That your behaviour at the time of teaching to the students in the class is very indecent and vulgar. That the lady students feel ashamed to sit in your class because of your misconduct and misbehaviour and because of the language you use for the lady students like ‘Nalayak’, ‘Bajari’ etc. . The above facts have been recorded in statement made by Kum. Ghag Aruna Shrikant a student of First Year B.A. on 28-9-1994. (4) That at the time of conducting the Classes you refer to the parents of the students and use insulting and abusive language without caring that there are lady students attending to the lectures. . The above facts have been recorded in a Statement given by Shri Damle Makarand Prabhakar of First Year B.A. on 28-9-1994. (5) That the language you use in the Class is very vulgar and cheap which would make any lady student attending the class feel ashamed. You get annoyed if any student tells -4- you that what you said is wrong to which in turn you say that "if you are a legal child of your parents and you know who your parents are, get up to prove that I am wrong". You also give wrong teaching to the students of the class, by saying that "Shivaji was very unjust and a partial ruler and he harassed the backward class." . These facts have been recorded in a statement made by Kum. Shetye Swati Vijay a student of First Year B.A. on 10-10-1994. (6) That you while teaching the subject give insulting references of Prabhu Ram, Shrikrishna and to Shivaji Maharaj. That the language you use is vulgar and abusive and that there is always tension and fear in the minds of the students when they attend your lectures. That when some of the lady students of the First Year B.Sc. Class tried to tell you not to make such indecent statements, you instead used very abusive language in a very cheap manner and you not only insulted the lady students but also made insulting statements to the parents of these lady students. The words and language used by you is such that even a peon would not utter such words. Due to this behaviour of yours the students avoid to attend your lectures because your teachings as it is, are not related to the subject in any way. But only filthy and indecent -5- statements are made by you in the Class. . These facts have been recorded in a statement given by Kum.Kokate Ashwini Vijay a student of First Year B.Sc. (7) That the words used by you are so dirty and most shameful, that you call the students as thieves. That you call the lady students Nalayak and that they sit in the Class and have got no shame for the same. You also make such statements like saying that the parents of the students are thieves and beggars and your teachings and the words used by you are filthy and cheap. . The facts have been recorded by statements given by (1) Shri Ambre Shivaji Bhikaji, student of First Year B.Com. (2) Shri Dalvi Santosh Vasant, Student of First Year B.Com. (3) Shri Chalke Uday Sitaram, student of First Year B.Com. Hence, your behaviour and conduct in the class while teachings to the students is in violation of the Code of Conduct more particular described in Statute No.439 (9a) (ii) and (b), of the Statutes framed under the Bombay University Act,1974." 3. The Petitioner denied the charges. The management appointed an advocate as Enquiry Officer. During the course of enquiry, the petitioner was permitted to be represented -6- through a representative of his choice namely, by a teacher/office bearer of the Association. The management examined five witnesses all of them being students who deposed about the nature of the behaviour of the Petitioner while conducting his classes. Upon the conclusion of the disciplinary enquiry, the Enquiry Officer entered a finding of misconduct in respect of two of the charges. The Enquiry Officer held that the Petitioner had violated the code of conduct. He held that the misbehaviour of the petitioner was derogatory to the status and dignity of a teacher, which amount to moral turpitude. The Enquiry Officer came to the conclusion that the charge of wilful and persistent negligence of duty was not proved. Following the report of the Enquiry Officer, the petitioner came to be dismissed from service on 25th September 1995. 4. The order of dismissal was challenged by the Petitioner in an appeal before the College Tribunal. By the order which is impugned in this proceeding, the Presiding Officer of the University and College Tribunal came to the conclusion that the enquiry was proper and the charge against the respondent was duly established. However, having regard to the fact that the petitioner was in service since 1980 as a full time lecturer, and that he belongs to a Nomadic Tribe and since the order of dismissal would result in a loss of service benefits, the Tribunal substituted the order of dismissal by an order of -7- compulsory retirement. During the pendency of the petition, the petitioner has received the benefit of ad hoc pension. 5. The challenge to the order of the University and College Tribunal, in the submissions which have been urged before the Court has been on the following counts; (i) The first submission is that the Enquiry Officer had resigned on 20th February 1995 but on a resolution passed by the Governing Council on 3rd March 1995, he was persuaded to continue the enquiry. The submission is that the petitioner had a reasonable apprehension that the Enquiry Officer was biased and the enquiry stands vitiated on that ground. (ii) No permission was given to the petitioner to engage an advocate; (iii) The defence representative defended the petitioner by cross examining two witnesses. During the enquiry, the defence representative had indicated that he had received threats for defending the petitioner and he did not cross examine the remaining three witnesses (the remaining witnesses were cross examined by the petitioner); (iv) The enquiry was vitiated by malafides - the petitioner was the senior most amongst reserved category candidates and had worked for fourteen years without any grievance. He was victimised in order to obstruct his chance of being promoted as the Head of the institution and (v) In the year 2001, a fact Finding Committee of the University of Mumbai primafacie came to the conclusion that the petitioner had suffered at the hands of -8- the management and directed the management to reinstate him subject to the order that may be passed in these proceedings. (vi) The charges levelled against the petitioner are vague because the particulars of the date, month or time when the obscene words were used are not given. (vii) The punishment of dismissal from service is disproportionate. 6. Each of the submissions now fall for determination. At the appropriate stage, the defence which has been raised on behalf of the Respondent-management would be considered. 7. At the outset, it needs to be noted that in January 1995, the petitioner had instituted a writ petition before this court under Article 227 of Constitution of India (Writ Petition No.419 of 1995) in order to challenge (i) The order of suspension dated 21st October 1994, (ii) The charge sheet dated 4th December 1994; and (iii) The order passed by the Enquiry Officer on 13th January 1995 declining permission to the petitioner to be represented by an Advocate during the course of enquiry. The writ petition was dismissed as withdrawn. The withdrawal of the writ petition would preclude the petitioner from questioning the legitimacy of the charge sheet on the ground of vagueness and from urging the objection that he was not permitted to be represented by an advocate. Both these grounds were available when he instituted the earlier proceeding and there was a specific challenge to the -9- legality of the charge sheet as well as the decision not to allow him to be represented by an advocate. That challenge came to an end upon the withdrawal of the earlier writ petition. 8. Quite apart from the impact of the withdrawal of the earlier proceeding in this court, there is no substance in the challenge that the charge-sheet was vague or in the allegation that there was a violation of the principles of natural justice on account of the denial by the Enquiry Officer to the petitioner of an opportunity to be represented by an advocate. In so far as vagueness of the charge is concerned, it is clear from a reading of the charge sheet that the petitioner was placed on notice that the enquiry related to his misbehaviour while conducting classes and arose out of the derogatory language that was used by him against the students, particularly in respect of women students. The statements of students were referred to in the statement of allegations together with the dates on which those statements were recorded. The obscene words which were allegedly used by the petitioner were adverted to in the chargesheet. The petitioner was given notice of the nature of enquiry and the allegations of misconduct. During the course of the proceeding before the Enquiry Officer on 11th January 1995, the petitioner stated that he had understood the nature of allegations and the charges levelled against him and proceeded -10- thereafter to deny the charges. The enquiry Officer noted that the petitioner had filed a reply of fourteen pages denying the charges. In the circumstances, it is not possible to accede to the contention that the charges were vague and that the enquiry stood vitiated on that ground. 9. The petitioner was permitted to be represented by a defence representative of his choice viz; Shri V.B.Rokade, who was a member of the teaching staff in the institution and the office bearer of the teachers’ association. There is no absolute rule of law by which an opportunity to defend oneself requires assistance necessarily of an advocate or of a person trained in law. The Presenting Officer in the present case was not a lawyer. The principles of natural justice were complied with by permitting the petitioner to have the assistance of a defence representative who was a teacher and a member/office bearer of the teachers’ association. 9A. But the submission which is urged on behalf of the Petitioner is that during the course of the enquiry, the defence representative had addressed a letter dated 9th February 1995 to the Principal of the college recording that he had received a telephone call at the premises of the college warning him against the consequences of defending the petitioner at the enquiry. It was urged that as a result, the defence representative would have been under a sense of fear -11- which would result in a violation of natural justice. 10. Having perused with the assistance of the learned counsel appearing for the parties, the entire record of the enquiry it is not possible to accede to the submission of the learned counsel for the petitioner. The record of the enquiry shows that after the letter dated 9th February 1995, the defence representative remained present during the course of the enquiry when evidence was being recorded. Two of the witnesses of the management were examined by the defence representative on 6th March 1995 and 12th April 1995 respectively. The evidence of the defence witness was also recorded in the examination-in-chief conducted by the defence representative. The learned counsel appearing on behalf of the petitioner has fairly stated before the court that as a matter of fact, no application was filed before the Enquiry Officer seeking replacement of the defence representative or for permission to appoint a fresh defence representative. It is evident from the record that the defence representative participated in the defence of the petitioner by attending the enquiry throughout. The defence representative in fact filed his letter of authority on 28th February 1995 after his earlier letter of 9th February 1995. In these circumstances, the submission that there was a violation of the principles of natural justice cannot be accepted. -12- 11. The principal challenge in the present case is that the Enquiry Officer tendered his resignation on 28th February 1995 after a charge of bias was made by the petitioner but was persuaded by the management to recall his resignation. The learned counsel submitted that consequently, there was a reasonable apprehension of bias on the part of the Enquiry Officer and it was appropriate and proper that the Enquiry Officer should desist from conducting the enquiry. While dealing with this submission, it was urged on behalf of the management that no challenge to this effect has been pleaded in the writ petition. But that apart, it is necessary for this court to scrutinise whether there is any substance in the submission. The record of the enquiry shows that on 8th February 1995, the Enquiry Officer had queried the petitioner about the status of the earlier writ petition which he had moved before this court. When the Presenting Officer attempted to make a submission, the Petitioner used abusive words against him. The Enquiry Officer recorded the incident and observed that the Petitioner should maintain discipline in the enquiry proceeding by desisting from the use of abusive language. The Enquiry Officer warned the Petitioner that the matter would be referred to the Tribunal, in accordance with the governing statute. A complaint was also filed by the Presenting Officer before the Enquiry Officer together with a supporting affidavit and the affidavit of typist who was present during the course of the enquiry. It must be noted -13- that after the incident of 8th February 1995, the enquiry was reconvened on 16th February 1995 when the petitioner was absent and it was on 28th February 1995 that the petitioner filed an application calling upon the Enquiry Officer to refrain from acting in the proceeding. The Enquiry Officer in the course of the proceeding recorded that he was pained by the conduct of the petitioner and the allegations which were levelled against him were untrue. The Enquiry Officer recorded that faced with the use of abusive language by the petitioner he had administered a warning during the course of the enquiry calling upon the petitioner to maintain discipline during the conduct of the enquiry. The Enquiry Officer noted that though the allegations against him were untrue, he was requesting the management to relieve him of the enquiry by tendering his resignation. On 3rd March 1995, the Governing Council passed a resolution requesting the Enquiry Officer to continue with the enquiry and expressed that the management had trust and confidence in him to conduct the enquiry in an impartial manner. The Enquiry Officer was requested to proceed with the enquiry since the allegations levelled against him were baseless. The enquiry therefore commenced on 6th March 1995. It is an admitted position before this court that the petitioner did not raise any objection to the continuation of the enquiry and willingly participated in the enquiry. -14- 12. The submission of the learned counsel for the petitioner that the Enquiry Officer should have desisted from acting as such and that he was biased against the petitioner cannot be accepted. The record of the enquiry would show that at the stage when the petitioner obstructed the enquiry by using abusive language against the Presenting Officer, even the evidence was yet to be recorded. Little had transpired during the course of the enquiry save and except for the order that was passed by the Enquiry Officer permitting the Petitioner to be represented by a defence representative but declining the assistance of an advocate. The Enquiry Officer recorded that he had administered a warning to the Petitioner to maintain discipline during the course of the enquiry. Significantly, the allegation of bias did not surface on the next date of hearing which was 16th February 1995 since the petitioner and his representative were absent on that date. On 28th February 1995, the petitioner filed an application calling upon the Enquiry Officer to desist from conducting the enquiry. The Enquiry Officer has recorded the events which took place and it is evident that at that stage, faced with obstructive tactics adopted by the Petitioner, the Enquiry Officer expressed his desire to be relieved from the enquiry. The management addressed a letter to him on 3rd March 1995 following which the enquiry continued on 6th March 1995. A chargesheeted employee cannot make a virtue of his own obstructive behaviour in the course of a disciplinary enquiry. -15- Faced with obstructive tactics, the Enquiry Officer is justified in taking necessary steps in order to ensure that the enquiry proceeds in an even and orderly manner. The Enquiry Officer in the present case has recorded that there was no substance in the allegations but he expressed the desire to be relieved from the enquiry. That he was persuaded not to do so, cannot be indicative of a bias against the chargesheeted workman. If the submission were to be accepted, it will result in a consequence that a chargesheeted employee could at his own will obstruct a disciplinary enquiry by raising untenable allegations against the Enquiry Officer and then suggest that he desist from conducting the enquiry. Accepting such a submission would result in negating the disciplinary process. Significantly, when the Enquiry Officer resumed the enquiry on 6th March 1995, the petitioner participated in the enquiry without protest. 13. The charge against the petitioner was a serious charge involving the use of abusive and improper language while conducting his classes. 53 students had initially furnished their complaints to the management on 20th September 1994. Statements of 9 students were recorded and 5 students deposed during the course of the enquiry. It is an admitted position that the petitioner was furnished with the preliminary report, statements of 9 students and a copy of the joint complaint. The evidence of 5 students who deposed in the enquiry remained -16- unshaken during the course of the enquiry. Each of the students deposed to the exact nature of the behaviour of the petitioner while conducting his classes and to the use of obscene language particularly against women students. Three of the students who deposed were women students. The true test in law is whether the finding of misconduct is supported by some evidence on record. During the course of the enquiry, Kum. Ashwini Vijay Kokate deposed about the nature of the behaviour of the petitioner in the following terms : "....I say that Prof.Shri Kalse used to address the girl students by saying that they are Nalayak. I further say that Prof Kalse used to abuse the girl students by using filthy words. I say that Prof. Shri Kalse used to use abusive language towards the parents of the girl students. I say that Prof Kalse used to sit in the class by keeping his legs on the table and hence his style of sitting in the class was not proper. 14. The next witness Kum.Swati Vijay Shetye deposed against the petitioner in following terms : "....I say that he was to use very cheap and vulgar language. I say that he never used to maintain decorum while talking to the girl students. -17- . He used to tell to the girl students that you just knew with make-up and parade in the college like whores. I say that if any student in the class did not understand the teaching of Prof. Kalse and if he says so to Prof. Kalse, Prof. Kalse used to get annoyed with that student and used to say that if you are a legal child of your parents then you should stand up and speak." 15. The aforesaid witness also stated that the Petitioner along with one person had come to her home on 16th January 1995 and warned her parents of the dire consequences that would be faced if their daughter deposed in the enquiry. 16. The third witness Kum.Aruna Pandurang Deorukhkar deposed to the following effect : "....It is true that Prof. Kalse was to use insulting and derogatory language towards the parents of the students. It is true that Prof. Kalse used to say that the girls students in my class are BAJARI and NALAYAK and I have stated the same thing in my personal statement. " 17. The third student lived with her mother, her father having expired, and she deposed that the petitioner had administered a threat to her mother. 18. The remaining two witnesses deposed to the nature of the -18- language used by the Petitioner and the relevant part of the deposition of the fourth witness Shri Sambhaji Shivaji Ambre, is to the following effect : "....I say that at the time of teaching to the students in the class Prof. Kalse used to teach to the students that the students should follow the ideology of DAWOOD because he is very brave. . In the month of January 1995 Prof. Kalse met me at the entrance of our college and told me that why you are getting yourself involved in my case and what benefit you would get from this. He further told me