1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3855 OF 2008 Vijay Kashinath Jadhav .. Petitioner Vs Secretary, Modern Education Society and Ors .. Respondents Mr.Sandeep Dadwal Adv. for the petitioner Mr.Sandeep A. Bhagwat Adv. for respondent nos. 1 and 2 Mr.A.P. Vanarase, AGP for the State CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 22nd September, 2009 P.C.: 1. Heard the learned counsel for the petitioner - original appellant, the learned counsel for respondent nos. 1 and 2 - educational institution and the learned AGP for the State. 2. Rule. By consent, rule is made returnable forthwith and the matter is heard finally. 3. The petition impugns the order dated 27th April, 2001 passed by the learned Presiding Officer, Pune / Shivaji University and College RMA wp3855-08.sxw 2 Tribunal, Pune in Appeal No. 11 of 1983 (P). By the said order, the appeal preferred by the petitioner against his termination came to be rejected. 4. The petitioner was appointed as a 'Demonstrator' in 1969 in the college run by respondent no. 1. Thereafter, his post was upgraded to that of lecturer in 1971. On 23.11.1980, the petitioner came to be terminated after holding Departmental Enquiry. Being aggrieved thereby, he preferred Appeal No. 11 of 1983 (P) under Section 42(B) of the Maharashtra Universities Act, 1994 before the Pune / Shivaji University and College Tribunal, Pune University Campus,Pune 411 007. However, during the departmental enquiry, the petitioner remained absent and the enquiry proceedings were held exparte, hence this court by order dated 25.07.1997 in Writ Petition No. 4196 of 2008 directed that fresh inquiry be held. Pursuant to the said order, the Departmental Enquiry was held afresh. The petitioner participated in the enquiry and he also deposed. On perusal of the papers, it is clear that sufficient opportunity was given to the petitioner to lead evidence and to put forward his case effectively. In the enquiry, it was held that the RMA wp3855-08.sxw 3 petitioner was irregular in his work during the period from June 1980 to November, 1980. He used to sign the attendance roll but he did not take classes and practicals. He had not been following instructions given to him by head of the department and he was negligent in his duties and was guilty of subordination and indiscipline. 5. As far as irregularity in attendance is concerned, the petitioner sought to give an explanation that he had met with a road accident. The story of the road accident was disbelieved by the Enquiry Officer and Tribunal. This story of the road accident was not mentioned in the appeal preferred by the petitioner in Appeal No. 11 of 1983. In fact, the petitioner had stated that the cause of brain injury was due to some domestic problem. The petitioner had also made an affidavit in December 1984 and in that affidavit also there is no mention of any road accident. It is seen that even in the writ petition filed before the High Court, the petitioner did not mention any kind of road accident. In fact, several other documents are referred to and in none of them the petitioner had raised any contention that he had met with any road accident. In this RMA wp3855-08.sxw 4 background, the Enquiry Officer arrived at the opinion that the story of a road accident taking place was not believable. In view of the facts narrated above, it is clear that the explanation given by the petitioner is not genuine and it cannot be relied upon. This clearly means that absence of the petitioner during the relevant period i.e June to November, 1980 has remained unexplained. 6. Thereafter, the learned counsel for the petitioner submitted that the petitioner was suffering from Schizophrenia and other mental illness and due to this he could not remain present. He has placed reliance on various medical certificates to support his contention that the petitioner suffered from Schizophrenia and mental illnesses. On perusal of all these certificates, it is seen that some certificates are of the year 1981 and some certificates are of the year 1983. All these certificates have been issued after the termination of the petitioner. The petitioner has been terminated on 23.11.1990 and one of the grounds is absence from service from June to November 1980. Looking at these certificates, I find that there is no material to show that the petitioner was suffering from Schizophrenia or any other mental illness prior to his termination. RMA wp3855-08.sxw 5 7. The learned counsel for the petitioner placed reliance on one certificate dated 9th May, 1983 issued by Dr. P.B. Shaha of N.M. Wadia Hospital. The said certificate shows that the petitioner was under treatment from 23rd August, 1980 to 13th November, 1980 for head injury and amoebiasis. First of all, this certificate clearly states that the patient was receiving treatment on OPD basis on different occasions. At no point of time during this period, he was admitted in hospital. There is some overwriting in this certificate. Moreover, Dr. Shaha has not been examined by the petitioner. As far as head injury is concerned, it is pertinent to note that the petitioner in his deposition has admitted that he was not admitted in the hospital but he was treated as outpatient in the OPD Department of the hospital. The treatment was that a "banded strip was only put on his left eyebrow. No bandage was done at that time on any part of his body." The petitioner has also admitted that he had attended classes for lectures and conducted practicals when he was taking OPD treatment at Wadia hospital. As far as the petitioner's case of having met with an accident is concerned, no evidence was led to show that he was actually met with an accident RMA wp3855-08.sxw 6 and hence, he was no fit to work during the period from June 1980 to November, 1980. From the material on record, it does not appear that the head injury was of serious nature. In his deposition, the petitioner had stated that the cause of brain injury was due to some domestic problem. Not only Dr. Shaha was not examined but no other relatives were also examined to support the case of the petitioner. The petitioner has a number of close relatives who are well educated which is seen from the evidence. Yet no one has been examined. The petitioner has stated in his deposition that his elder brother holds the degree of M.S.W and has been in the employment of Wadia Hospital since 1970. The petitioner has admitted that during 1980 to 1983 his parents, brother and married sisters were residing with him. None of these close relatives were called to give evidence supporting the petitioner's case of head injury. The father of the petitioner has studied up to Matric. He has two married sisters and both sisters used to reside with him during 1980 to 1983. One sister, Mrs. Aruna Gaikwad is a doctor holding a degree of B.A.M.S. Another sister Mrs. Shanta Chowgule is a qualified tutor in Nursing College RMA wp3855-08.sxw 7 during 1980 to 1983. The mother of the petitioner was a primary teacher. The father of the petitioner was S.S.C. The petitioner himself is M.Sc in Zoology. Yet no one was examined to support his case. 8. As far as the second issue is concerned that the petitioner used to sign the muster roll but he did not take his classes or practicals. The evidence of Dr. Nadkarni and the principal Dr. Mudgal clearly proves this fact. Nothing has been brought out in their cross- examination, so as to disbelieve them. 9. As far as the third and fourth issues are concerned, it is seen that instructions were given to the petitioner that he should meet the principal. It would be relevant to refer to the evidence of head of the department Mr. Nadkarni. The Head of the Department Mr. Nadkarni deposed : "I sent for him on several occasions but he avoided to see me". Principal Mudgal deposed : "on 11th September, 1980, I wrote on the attendance register that he should sign the register only after seeing me personally, initialed and dated it. In spite of that he signed the register on 11th and 12th September without seeing me personally." This shows that the RMA wp3855-08.sxw 8 petitioner was not following the instructions given by the Head of Department and he was guilty of insubordination. After considering all the material on record, the Tribunal had rightly observed that no fault can be found with the findings arrived at by the Enquiry Officer. 10.The learned counsel for the petitioner submitted that the punishment is too harsh and disproportionate and at least the punishment may be reduced as the order of dismissal would deprive the petitioner of pensionary benefits. He submitted that right from the year 1969 to 1980, the petitioner has rendered his services sincerely, hence at least the punishment may be reduced. The Tribunal has also considered this aspect carefully and the Tribunal was of the opinion that it was not a fit case to alter the punishment. The Tribunal observed that the petitioner was born a Christian and his parents, brother and sisters are Christians. However, in June 1983 in an application for a certain post, he had shown his religion as "Hindu" and his caste as "Bhamta". The petitioner obtained a Caste Certificate dated 3rd June, 1983 issued to him by the Tahsildar and Executive Magistrate, North Solapur RMA wp3855-08.sxw 9 certifying his caste as "Bhamta". The petitioner admitted that he had never ordinarily resided in Solapur. The petitioner deposed : "I changed my religion in 1976 to get the benefit of inclusion of Bhamta caste in Backward classes". Looking to all the facts and this fact the Tribunal declined to interfere with the punishment imposed upon the petitioner. Looking to the fact that the petitioner has indulged in getting a false certificates and the other facts, no case is made out for reducing the punishment. In view of the material on record, no case is made out for interference. The petition is dismissed. (SMT. V.K. TAHILRAMANI, J) RMA wp3855-08.sxw 10 RMA wp3855-08.sxw