1988 Supreme(Bom) 104

IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar, J.
Prahladrai Dalmia Lions College of Commerce and Economics,
Bombay others..... Petitioners.
Versus
A.M. Rangaparia others.... Respondents.
Writ petition No. 3129 of 1986 with Writ petition No. 159 of 1987, decided on 17-3-1988.
Advocates appeared :
S.H. Kapadia, R.S. Pai, G.D. Uttangale i/b. Ghanekar Co., for petitioners in W.P. No. 3129/86 for respondents in W.P.No. 159/87.
S.J. Deshmukh, N.M. Ganguli, for respondents in W.P. No. 3129/ 86 for petitioners in W.P.No. 159/87.

Headnote:BOMBAY UNIVERSITY ACT, 1974

       Sections 42-B and 42-D-College Tribunal-Jurisdiction of-Tribunal can go into question of legality correctness of orders passed, of fact and it can record evidence.

       While interpreting the scope of Section 42-C and 42-D., one cannot be unmindful of the several situations which led to the passing of the variety of orders including the order of dismissal, removal etc. It would be too bold a proposition to lay down that every order of dismissal, removal etc, must precede an enquiry. Take a case where au employee is appointed for a fixed period. After expiry of the said period the services automatically come to an end and the Management need not necessarily hold an enquiry. Take another case where a contract of service provides that an employee shall not remain absent at any point of time. The employee remains absent and consequently an order of termination is made. Consistent with the contract order of termination may appear to be valid and no enquiry whatsoever on these admitted facts may be necessary and may not be held. It must therefore, follow that every order of admissal, removal etc, need not be preceded by an enquiry. It can be a simpliciter termination without any enquiry yet such an order can be challenged by way of an appeal to the Tribunal.

       Taking into account the various situations and in view of wide powers conferred upon the Tribunal in my opinion the appeal filed against an order passed by the Management is nothing but a plaint challenging the order on various grounds. Merely because in Section 42-C the legislature bas termed the College Tribunal as an appellate court it cannot be strictly construed to mean that it has no powers to record evidence. The nomenclature would not be a decisive factor in determining the jurisdiction and the powers of the Tribunal. It has used the expression Tribunal equivalent to an Appellate Court because there is always an order of Management which is sought to be challenged before the Colleged Tribunal and therefore, it is in that sense "An Appellate Court" The College Tribunal is also given power to go into the question of legality and correctness of the impugned order including to decide as to whether the order is illegal or improper. The Tribunal is also empowered to set aside the order of Management partially or wholly and issue directions to the Management accordingly. The words illegal and improper used in sub-section (2) of Section 42-D are indicative of the fact that the College Tribunal can also find out as to whether the impugned order is illegal or improper. The phrase, impropriety covers a larger area which includes in my opinion non-observance of the principles of natural justice. The Tribunal is also empowered to direct Management to reinstate the employee on the same and/or lower post as it may specify. It may also direct the Management to restore the employee to the rank which he held before reduction or to any lower rank as it may specify. The Tribunal can also direct to give arrears of emoluments to the employee. The Tribunal can also impose a lesser punishment in lieu of dismissal, removal etc. The Tribunal is also empowered to direct that in case if it is decided not to reinstate the employee or in any other appropriate case to give sum to the employee, by way of compensation but not exceeding his emoluments for six months. Section 42-D if considered in its proper perspective, to any mind it leaves no manner of doubt that College Tribunal has got jurisdiction to try all issues and to adjudicate upon the dispute between the Management and the employee including power to record evidence. If the argument of Mr. Deshmukh is accepted it will amount to giving too narrow jurisdiction to the College Tribunal and this would result into multiplicity of proceedings. In a case where the enquiry fails because of non-observance of the principles of natural justice, it does not mean that the employee has not committed any misconduct and it may still be open to the management to hold an enquiry on the same charges of misconduct. Does it not amount to multiplicity of proceeding.?

       Would it not cause greater hardship to the employee? It would also result in waste of time and money on both sides. In order to obviate this difficulty opinion, the only proper interpretation of Section 42-C would be that the College Tribunal will have a jurisdiction to hold further enquiry if it comes to the conclusion that the enquiry held by the Enquiry Officer is vitiated on the ground of non-observance of principles of natural justice. The object of enactment as stated earlier is to adjudicate and resolve the dispute between the Management and the Employee and as indicated in Section 42-C (3) to dispose of such appeals within three months from the date of its receipt by the Tribunal. The object indicated in this section needs no further comments.

       It is also necessary to state that the College Tribunal proceeded on the footing that it has got a limited jurisdiction in dealing with such appeals and it cannot interfere with the findings of the Enquiry Officer unless they are found perverse. At several places in the judgment the Presiding Officer of the Tribunal has concluded that the findings of the Enquiry Officer cannot be termed as perverse. In fairness I must say that the Tribunal has also considered the evidence on record but the same has been considered in a limited manner to find out as to whether the findings recorded by the Enquiry Officer were perverse or otherwise. This approach, in my opinion, is wholly unsustainable. As indicated above, it is a statutory Tribunal constituted under Section 42-A of the Act and is vested with all necessary powers to adjudicate upon the disputes or differences between the employees and the Management. Section 42-C of the Act deals with general powers and procedure of Tribunal. Right of appeal to the College Tribunal being statutory one, it must necessarily follow that it has got all powers to reappraise the material on record and come to its own findings. The Tribunal exercises all powers of an appellate court under Order XLI of the Code of Civil Procedure including framing of additional issues and recording additional evidence. If that be so, in my opinion the Tribunal could not have reappraised the evidence in a limited manner to find out as to whether the findings of the Enquiry Officer were perverse or otherwise. The Tribunal has to re-appreciate the entire material on record and come to its own conclusion independently and if necessary in the interest of justice record the evidence.

       Section 42-D-Termination of employee-Chairman and Members of Managing Committee-Were star witness on behalf of employer-Present through out the proceedings before Enquiry Officer-Acted as prosecutors and also cross-examined employee-Witnesses-Employee objected to presence of these three witnesses at time of recording of evidence-Despite objections no action was taken-Held, that enquiry unfair, unjust and total violation of natural justice. (1987 (55) F.L.R. 821 Rel.).

       The counsel appearing for the respective parties contended the matter extensively and showed various relevant documents on record. Before dealing with the contentions raised by the counsel appearing in support of the writ petition filed by the employers it is necessary to consider a very basic contention raised on behalf of the employee entire enquiry was unfair unjust and proceeded despite employees objections in utter violation principles of natural justice. He also branded the decision of the Governing Council terminating the employees services as mala fide, unjust and unfair. To substantiate this contention he contended that three persons viz., R (Chairman of the Governing Council) and P, principal of the college acted as prosecutors, witnesses and also Judges. According to the counsel these three persons were the star witnesses on behalf of employers. They were present throughout the proceedings before the enquiry officer when the evidence of one of them was being recorded. Band R acted as prosecutors throughout the proceedings and also cross-examined the witnesses of; he employee. The employee vide his application dated 5th August, 1982 (Exh. B) objected to the presence of these three witnesses at the time of recording of the evidence. Despite this objection the enquiry officer did not take any action and allowed the proceedings to continue in their presence. The contention that enquiry be held as unfair, unjust and in violation of principles of natural justice. He also acted the judgment of this Court (DB) in K. R. Nandan v. Fluid Power (P.) Ltd., 1987 (55) FIR 821 and in particular para (d) which reads as under :-

       “the Administrative Officer Barve who represented the first respondent at the domestic enquiry and acted as a prosecutor, himself gave evidence in the enquiry proceeding and the Enquiry Officer merrily recorded his statements and made use thereof to hold the petitioner guilty of the charges levelled against him. The involvement of Barve in this manner at the enquiry blatantly violated the principles of natural justice."

       These observations aptly apply to the present case. Accordingly held that the enquiry was unfair, unjust and in total violation of principles of natural justice. A specific ground is also taken by the employee in his writ petition (see ground No. 20).