1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2977 OF 2009 Dagaji S/o Damodar Bacchav } Age : 60 Years, Occ. : Service, } R/o : Ajay Colony, Ring road, } Jalgaon, District : Jalgaon. } .... PETITIONER V E R S U S 1. Jalgaon Jilha Maratha Vidya } Prasarak Sahakari Samaj Ltd. } Jalgaon, through its Chairman. } 2. The Principal } Shri. S.S.Patil Arts, Bhausaheb } Salunke Commerce and Shri. } G.R.Pandit Science College, } Jalgaon. } 3. North Maharashtra University } Jalgaon, through its Registrar. } .... RESPONDENTS Mr. S.R.Barlinge, Advocate for petitioner. Mr. V.D.Hon, Advocate for respondent nos. 1 & 2. Mr. A.B.Girase, Advocate for respondent no. 3. WITH WRIT PETITION NO. 1505 OF 2010 2 Jalgaon Jilha Maratha Vidya } Prasarak Sahakari Samaj Ltd. } Jalgaon, District : Jalgaon } through its Honorary Secretary } Shri.Tanaji Keshavrao Bhosle } Age : 56Years, Occ.: Advocate. } .... PETITIONER V E R S U S 1. The North Maharashtra University } Jalgaon, District : Jalgaon } Through its Registrar. } 2. Dagaji S/o Damodhar Bacchav } Age : 60 Yrs., Occ. : Nil. } R/o : 7, Ajay Colony, Ring road, } Jalgaon, District : Jalgaon } .... RESPONDENTS Mr.V.D.Hon, Advocate for petitioner. Mr. A.B.Girase, Advocate for respondent no. 1. Mr. S.R.Barlinge, Advocate for respondent no. 2. CORAM : P.V.HARDAS & S.V.GANGAPURWALA, JJ. JUDGMENT RESERVED ON : 05/04/2010 JUDGMENT PRONOUNCED ON : 16/04/2010 JUDGMENT : ( PER – S.V.GANGAPURWALA, J.) 1. Rule. Rule made returnable forthwith. With the consent of the parties, this petition is heard finally at the stage of admission. 3 2. We have heard the learned counsels for the respective parties. 3. Both these Writ Petitions are inter-related with each other, as such common Judgment is being pronounced in both the Writ Petitions. 4. The petitioner in Writ Petition No. 2977 of 2009 has filed said petition under Article 226 of the Constitution of India for multifarious reliefs. The reliefs claimed by the petitioner in the said petition is with regard to the quashing of suspension, directions not to hold enquiry against the petitioner and to implement the orders of the Grievance Committee. 5. After filing the petition, the petitioner attained the age of superannuation, as such the relief as far as quashing the order of suspension is concerned, has become otiose and the petition is now restricted to the relief in respect of directions restraining the respondent nos. 1 and 2 from holding any enquiry against the petitioner in respect of the charges levelled against him and seeking directions against respondent nos. 1 and 2 to implement the orders passed by the Grievance Committee on 22/9/2009. 6. Writ Petition No. 1505 of 2010 has been filed by the 4 petitioner/Management against the respondents challenging the order of the Grievance Committee dated 25/9/2009 on the complaint made by the respondent no. 2 therein i.e. petitioner in Writ Petition No. 2977 of 2009. 7. The parties would be referred as per their status in Writ Petition No. 2977 of 2009. The petitioner in Writ Petition No. 2977 of 2009 Dagaji Bachav was appointed as a Lecturer in Psychology by the respondent no. 1 – Jalgaon Jilha Maratha Vidya Prasaraak Sahakari Samaj Ltd., Jalgaon in the year 1975. On 28/4/2009, the petitioner was suspended by the respondent no. 1. On 29/4/2009, the petitioner filed a complaint before the Grievance Committee. Thereafter, the charge sheet was issued by the respondent no. 1 on 25/5/2009 and the same was served upon the petitioner on 28/5/2009. On 31/5/2009, the petitioner attained the age of superannuation and stood retired from his services. 8. During the pendency of the Writ Petition No. 2977 of 2009, the Grievance Committee vide its Order dated 25/9/2009 allowed the complaint of the petitioner and directed the respondent to prepare the pension papers of the petitioner as per law and to send the same to the office of the Accountant General within period of 8 days. The said order is challenged by the present respondent no. 1 vide Writ Petition 5 No. 1505 of 2010. 9. The contour of the arguments of Mr. S.R. Barlinge, learned counsel for the petitioner is that once the employee attains the age of superannuation, the relationship with the employer as that of a master and servant comes to an end and unless the Statute specifically provides for continuation of the enquiry, the management does not have an authority to proceed with the enquiry. According to him, there is no enabling provision in the Statute which would authorize the management to continue with the enquiry even after the petitioner attains the age of superannuation on 31/5/2009. The learned counsel to butress his submission, has relied on the Judgment of the Apex Court delivered in Bhagirathi Jena V/s Board of Directors, O.S.F.C. & Oths. Reported in 1999 1 CLR 1074, so also the Judgment of the Co- ordinate Bench of this Court in case of Ramdas Govind Bakhle V/s Maharashtra State Financial Corporation reported in 2000 1 CLR 808 and the Judgment of the learned Single Judge of the Andhra Pradesh High Court delivered in case of Ramalinga Reddy V/s Non Conventional Energy Development Corporation of A.P. Ltd., a State Government Co., rep. By its Managing Director, Hyderabad reported in 1994 II CLR 370. He also relied on Statute 431 and 432, which deals with the grounds for taking any disciplinary action against a teacher and penalties that can be imposed and canvassed that these provisions do not give any authority or power to claim recovery against 6 an employee from retiral benefits. Statute 431 and 432 reads : “ 431. Grounds for taking any disciplinary action against a teacher : No disciplinary action shall be taken or punishment inflicted on the teacher confirmed in service except on one or more of the following grounds : (i) Misconduct (ii) Act or omission involving moral turpitude (iii) Willful and persistent neglect of duty (iv) Incompetence. Provided that the ground of incompetence shall not be used against the teacher after he has served the University/College/Institution for a period of five years or more including the period of probation. 432. Penalties : 1. The penalties that can be inflicted on one or more of the grounds mentioned in Sec. 431 shall be the following and shall be classified into minor and major penalties. 7 (I) Minor Penalties : (i) Reprimand, Warning or Censure, (ii) Withholding of Increments. (II) Major Penalties : (i) Reduction to a post in the lower pay-scale or to a lower stage of increment in the employees’ own pay- scale. (ii) Termination of service. (iii) Compulsory retirement (iv) Removal from the service of the University/College/ Recognized Institution (v) Dismissal from the service of the University/College/ Recognized Institution. Provided however that the following shall not amount to penalty for the purposes of these statutes : (i) Stoppage of increment of the teacher at the assessment bar in the time-scale of pay on the 8 ground of his unfitness to cross the bar. (ii) Non promotion of the teacher, whether in a substantive or officiating capacity, after consideration of his case for promotion to a grade or post for which the teacher is eligible. (iii) Reversion of the teacher appointed on probation in any other grade or post to his permanent grade or post during or at the end of the period of probation, in accordance with the terms of his appointment, or the rules and order governing such probation. (iv) Reversion of the teacher officiating in a higher grade or post to a lower grade or post, on the ground that the teacher is considered to be unsuitable for such higher grade or post or on any administrative ground unconnected with this conduct. (v) Recall of the services of the teacher whose services had been borrowed from or lent to some outside authority at the disposal of such authority. (vi) Termination of the services (a) of the teacher appointed on probation during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation, 9 or; (b) of the temporary teacher in accordance with the rules made in that behalf by the University; or (c) of the teacher employed under an agreement, in accordance with the term of such agreement. 2. Specification of details of the penalties - (i) Withholding of increment (s). When an increment or increments of the teacher is/are withheld the authority imposing the punishment shall specify in its order (a) the increment/number of increment (s) withheld. (b) the period for which they are withheld. (c) Whether the stoppage of increments shall have effect on the future increments, and (d) Whether the period for which the increments are withheld shall be exclusive of the leave (except casual leave and other leave taken on valid grounds ) taken during the period. (ii) Reduction to a post in the lower pay- scale or to a lower stage of increment in the 10 teacher’s own pay scale. The authority imposing this punishment shall specify in its order - (a) The period for which such reduction shall be effective and (b) Whether on restoration the order of reduction shall have effect on future increments. 3. Notwithstanding anything contained in the Statutes and in other Rules of the University/College/Recognized Institution, if any, the teacher who is reverted to a lower stage of increment in his own time-scale of pay as a measure of punishment shall not ordinarily be restored to his original pay-scale from which he was reverted or to the original incremental stage in his own time-scale of pay unless the period stipulated in his order of punishment is completed ”. 10. Per contra, Mr. Hon, learned counsel for the respondent canvassed that there is no barring provision in the Statute dis entitling the Management to proceed with the enquiry even after the employee has attained the age of superannuation. According to him, it is not a rule of universal application that once the employee retires from the service, the enquiry which is initiated prior to his attaining the age of 11 superannuation can not be continued. According to him, in absence of any barring provision in the Statute, the Management is entitled to proceed with the enquiry, though the petitioner has attained the age of superannuation. According to him, four witnesses are already examined but as the matter is pending before the Court and was being heard, they have not proceeded further with the enquiry. Shri. Hon to subtantiate his arguments, relied upon the dictum of the Apex Court in case of U.P. State Sugar Corpn. Ltd. & Oths. V/s Kamal Swaroop Tondon reported in 2008 AIR SCW 1241, which state that, “ when the departmental proceedings were initiated against the delinquent on the basis of the show cause notice served upon him while he was very much in service, it can not be said that the proceedings were initiated after the employee retired and that there was no power, authority or jurisdiction with the employer to take any action against the employee. The proceedings could have been taken for recovery of final loss suffered by the Corporation due to negligence and carelessness attributable to the respondent – employee ”. He also relied on the Judgment of the Apex Court delivered in State of Uttar Pradesh & Oths. V/s R.C.Misra reported in 2007 (9) SCC 698, wherein the Apex Court dealing with Civil Services Regulation, held that Regulation 351-A confers the power upon the Government of with-holding or withdrawing the pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from pension of the whole or any part of the pecuniary loss caused to the Government, if the pensioner is found 12 in the departmental or judicial proceedings to have been guilty of grave misconduct or have caused pecuniary loss to the Government by misconduct or negligence during his service including service rendered after retirement. The Apex Court was also of the view that there was no requirement of obtaining the sanction of the Government for continuing with the enquiry. 11. Taking into account the factual matrix of the case and the legal submissions advanced by the learned counsels for the parties, the moot question to be adjudicated in the present matter is as to whether on attaining the age of superannuation, the Management can proceed with the enquiry in absence of any enabling provision in the Statute governing the parties. The perusal of the Statute makes it clear that there is no enabling provision in the Statute authorizing the Institution i.e. employer to proceed with the enquiry after the employee has attained the age of superannuation. The Judgment of the Apex Court in Bhagirathi Jena’s case (referred supra) clearly lays down the dictum that in absence of any provision, the disciplinary enquiry can not be continued after the superannuation of the employee. The employer has no legal authority in that behalf. The Division Bench of this Court also in case of Ramdas Bakhle followed the same view. It is clear that once an employee attains the age of superannuation, the relationship of Master and servant comes to an end. In the present case, the Statute also does not contain any enabling provision giving any authority to the 13 Management to continue with the enquiry. 12. The citation relied by Shri. Hon i.e. State of Uttar Pradesh V/s R.C. Misra is on different set of facts as in the said case Regulation 351-A conferred specific power upon the Government of withdrawing or with-holding pension or any part of it, so also in the case of U.P. Sugar Corporation Ltd. (referred supra), the same was with regard to the power of the Corporation for taking upon the proceedings for recovery of financial loss suffered by the Corporation. 13. It will be necessary to refer to the charges which have been issued to the petitioner. On perusal of the said charges, the same are in respect of alleged misconduct of the petitioner. Charge no. 1 deals with the act of misconduct ( terrorizing the persons ) committed by the petitioner on 8/4/2009 in the multi utility conference room along with some others. Charge no. 2 refers to the involvement of the petitioner in politics and thereby being negligent in his duty and acting against the interest of the Institution. Charge no. 3 deals with giving shop no. 28 owned by the Institution to the Credit Society run by the employees of the Institution. Charge no. 4 dealt with not remaining in the college for the full time and leaving premises without the permission of the Management and charge no. 5 was with regard to the fact that though he was a Lecturer in the College, he used to look after the work of Satpuda Automobiles and as such was negligent in the duty. 14 14. In the present case, Statute 431 gives four grounds, in which disciplinary action can be initiated. Those four grounds are : (i) Misconduct (ii) Act or omission involving moral turpitude (iii) Willful and persistent neglect of duty (iv) Incompetence and the penalty prescribed under Statute 432 are under two heads : (i) Minor penalties i.e. reprimand, warning or censure or withholding of increments ; and (ii) Major penalties : (a) Reduction to a post in the lower pay-scale or to a lower stage of increment in the employees’ own pay-scale. (b) Termination of service. (c) Compulsory retirement (d) Removal from the service of the University/College/Recognized Institution (e) Dismissal from the service of the University/College/Recognized Institution. 15. Perusal of the Statutes 431 and 432 clearly depicts that it does not postulate punishment of with-holding of pension or that recovery can be ordered against an employee. So also, bare glance of the charges show that not a single charge deals with pecuniary loss caused to the Management and recovery of any crystallized sum on 15 account of alleged loss. No such charge appears in that regard. In such circumstances, when there is no charge claiming any crystallized amount from the petitioner on account of alleged loss, so also, the Statute nowhere authorizes the employer to initiate any enquiry or punishment in respect of recovery of any amount, then in such circumstances, it will have to be held that in absence of any enabling provision in the Statute, the employer would not have any right, authority or jurisdiction to proceed with the enquiry against the employee after his attaining the age of superannuation. In the present case, the employee has attained the age of superannuation on 31/5/2009 and as such after the said date, the respondent no. 1 would not have any legal authority to proceed with the enquiry. As such, Rule will have to be made absolute in terms of prayer clause ‘ C ’ of the petition and direct the respondents not to hold any enquiry against the petitioner in respect of the charges which are served upon the petitioner on 28/4/2009, which are annexed at Page no. 21 of the Paper book along with affidavit in reply filed by respondent nos. 1 and 2. 16. The other relief is prayed by the petitioner by way of an amendment, seeking directions against the respondents to implement the order passed by the Grievance Committee dated 22/9/2009. Respondent no. 1 has also filed the petition bearing Writ Petition No. 1505 of 2010 challenging the said order. The present respondent no. 1 i.e. the petitioner in Writ Petition No. 1505 of 2010 has assailed the 16 order of the Grievance Committee on the ground that it is without jurisdiction. According to Mr. Hon, learned counsel for the petitioner in Writ Petition No. 1505 of 2010 as per Section 57 of the Maharashtra Universities Act ( For short, ‘ the Act ’), the University has to constitute a Grievance Committee to hear the grievances and the Grievance Committee is supposed to make a report to the Management Council to take such action as it deems fit and the decision of the Management Council on such report shall be final. According to the learned counsel, the constitution of the Grievance Committee is also laid down under the Act. According to the learned counsel, the impugned order is passed by the Vice Chancellor and as such is contrary to the provisions of Section 57. The Vice Chancellor does not have power to directly pass order on the report of the Grievance Committee. According to him, as per the provisions of Section 57, the Vice Chancellor does not get powers giving go bye to the mandatory provisions of law and as such is bad and void in law. We have perused the said provision. As per Section 110 of the Act, the powers of delegation are given by the Statute and the Management Council is entitled to delegate its powers. If the impugned order is perused, it is clear that the Grievance Committee on 22/9/2009 has prepared the report of final recommendation and the Vice Chancellor has accepted the same. The learned counsel for the University i.e. respondent no. 3 in Writ Petition No. 2977 of 2009 and respondent no. 1 in Writ Petition No. 1505 of 2009 has placed on record the Resolution dated 20/11/1997, which shows that the 17 Management Council has delegated its powers to the Vice Chancellor and as such it can not be said that the said order is without any authority or jurisdiction. 17. As we have held that the respondent nos. 1 and 2 are not entitled to proceed with the enquiry initiated against the petitioner, then it naturally follows that the respondent nos. 1 and 2 are bound to adhere to the order passed by the Grievance Committee. As such, respondent nos. 1 and 2 are hereby directed to comply the order of the Grievance Committee dated 22/9/2009 and the communication made to the respondent nos. 1 and 2 by the respondent no. 3 vide its letter dated 25/9/2009. 18. Rule is thus made absolute in Writ Petition No. 2977 of 2009 in terms of prayer clause ‘ C ’ and ‘ DD ’ . The Writ Petition No. 1505 of 2010 is dismissed. There shall be no order as to costs in both the Writ Petitions. [ S.V.GANGAPURWALA ] [ P.V.HARDAS ] JUDGE JUDGE knp/WP 2977.09 & 1505.10 ( J ) 18