2008 Supreme(Bom) 677

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE
S.B.MHASE & A.A.KUMBHAKONI,JJ.

Prof. Shashikant B. Kulkarni — Petitioner
V/s.
The Principal, BPCS College of Physical Education,
Writ Petition No.2011 2006
Decided on : 05.05.2008

Headnote:Bombay University Statutes. - Statutes 439-D and 444-B-Moral turpitude and misconduct-Disciplinary action-Propriety of.-The charges framed against the petitioner set out hereinabove related to moral turpitude and misconduct committed by the petitioner involving exhibition of immoral sexual behaviour towards girl students. The findings of fact set out clearly demonstrate the misbehaviour on the part of the petitioner is "derogatory to the status and dignity of a teacher". Explanation (b) set out in Statute 439-D is clearly attracted in the facts and circumstances of the case and the petitioner is clearly guilty of moral turpitude. In the facts and circumstances of this case, therefore, we find that the entire procedure has been followed strictly in conformity with the statute framed by the University of Mumbai and, therefore, it cannot be said that the disciplinary action impugned by the present petition has been taken contrary to or in breach of the "guidelines and norms".

       Bombay University Statutes. - Statutes 439-A and 444-E-Misbehaviour with girl students-Termination of service.-The contention of the Counsel is that the case of the petitioner falls in the category of "little exception" carved out by the Supreme Court. Suffice it to say, in this regard, that similar contention was raised before the Tribunal. The Tribunal has devoted paragraphs 28 to 36 of the judgment on this issue and High Court does not find any reason not to agree with these observations of the Tribunal. In short, the Tribunal has observed, and we say correctly, that the case of the petitioner does not fall in the category of "little exception" carved out by the Supreme Court in the aforesaid case of Capt. M. Paul Anthony, AIR 1999 SC 1416 : 1999 (3) SCC 679. The Counsel appearing on behalf of the petitioner was not at all able to make even a dent in any of these findings of the Tribunal.

       Bombay University Statutes. - Statute 439-D(a), Expl. (b), (c), (d), (f) and 444-B-Misbehaviour by teacher-Judicial review.-Various contentions taken up by the petitioner in this reply unmistakably show that the petitioner was given full opportunity by the management to show cause even as to why the findings of the Inquiry Officer recorded in its report should not be accepted by the management. Of course, in addition thereto, admittedly, an opportunity was given to the petitioner to show cause as to why the proposed penalty of dismissal/removal of the petitioner from service be also not imposed upon him.

       Maharashtra Universities Act, 1994 - Section 14(8)-University of Bombay Statute, 439-D-Disciplinary proceedings-Moral turpitude-Misconduct of teacher-Exhibition of immovable sexual behaviour towards girl students involved-Conduct and character of teacher-Amounts to misbehaviour, derogatory to status and dignity of a teacher-Statute 439-D, Explanation (b) attracted-Petitioner-teacher guilty of moral turpitude-Punishment of removal from service imposed on him just and proper.-In the facts and circumstances of the present case, it may be noted that the charges framed against the petitioner set out hereinabove related to moral turpitude and misconduct committed by the petitioner involving exhibition of immoral behaviour towards girl students. The findings of facts set out hereinabove clearly demonstrate that misbehaviour on the part of the petitioner is "derogatory to the status and dignity of a teacher". Explanation (b) set out in statute 439-D referred to hereinabove is clearly attracted in the facts and circumstances of the case and the petitioner is clearly guilty of moral turpitude.

       The allegations proved against the petitioner to say the least are of such a nature that they are unbecoming of a teacher. We find that there can be nothing more shameful and objectional for a teacher employed to teach girl students. Not only at the threshold of this judgment but also in the aforesaid various paragraphs we have noted the status and dignity of a teacher. Court has also noted hereinabove the conclusive findings of facts recorded by the Inquiry Officer, accepted by the management and confirmed by the appellate Tribunal that are binding on Court. In the circumstances nobody can have any doubt that the behaviour of the petitioner as proved in the context of expected conduct and character of the teacher amounts to misbehaviour derogatory to the status and dignity of a teacher. This is exactly what explanation (b) of Statute 439-D says that ’moral turpitude’ shall include. Of course we need not emphasis that the explanation to Statute 439-D explains both these terms ’moral turpitude’ and ’misconduct’ by way of only an ’inclusive explanation’. This explanation is not an "exhaustive explanation" of the aforesaid two terms viz. ’misconduct’ and ’moral turpitude’. Therefore, even the proved facts in the present case demonstrate that the petitioner is guilty, in addition to moral turpitude, also of misconduct. It will not be correct to restrict the meaning of the term ’misconduct’ only and only to violation of code of conduct set out in Statute 439-B aforesaid. No doubt violation of code of conduct set out in Statute 439-B will certainly amount to misconduct within the meaning of the term ’misconduct’ under Statute 439-D but the conduct as exhibited by the petitioner in the present case will also, in the light of the aforesaid judgments of the Supreme Court amount to misconduct within the meaning of the term ’misconduct’ contemplated by Statute 439-D of the statutes of the University of Mumbai.

       Maharashtra Universities Act, 1994 - Section 14(8)-University of Bombay Statute 444-Disciplinary proceedings-Natural justice-No opportunity of hearing required to be given to delinquent-servant under Statute 444-Apex Court observed that question whether requirement of natural justice met by procedure adopted in a given case must depend upon a greater extent on facts and circumstances of case in point, Constitution of Tribunal and Rules under which it functions.-Inasmuch as the aforesaid argument of the petitioner now alleging breach of principles of natural justice is concerned, we may refer to the judgment of the Supreme Court delivered in the case of Suresh Koshy George v. University of Kerala, reported in AIR 1969 SC 198. Dealing with the requirement of the principles of natural justice in the context of argument advanced on behalf of the petitioner set out hereinabove, the Supreme Court in paragraph 15 of this judgment has observed thus :

       "There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that Article that every disciplinary proceeding must consist of two inquiries one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. Even if a show cause notice is provided by law, from that it does not follow that a copy of the report on the basis of which the show cause notice is issued should be made available to the person proceeded against or that another inquiry should be held thereafter."

       In the same judgment delivered in the case of Suresh Koshy George (supra) in paragraph 7, the Supreme Court has observed that the question whether the requirements of natural justice are being met by the procedure adopted in a given case must depend upon a greater extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. As demonstrated hereinabove, the relevant statute 444 does not at all contemplate giving of any opportunity to the petitioner which, in the submission of the counsel appearing on behalf of the petitioner ought to have been given to the petitioner. Courts are, therefore, unable to accept the submissions made in this regard on behalf of the petitioner.

       BOMBAY UNIVERSITY STATUTES - Statutes 439-D and 444-B - Moral turpitude and misconduct - Disciplinary action - Propriety of. - The charges framed against the petitioner set outhereinabove related to moral turpitude and misconduct committed by the petitioner involving exhibition of immoral sexual behaviour towards girl students. The findings of fact set out clearly demonstrate the misbehaviour on the part of the petitioner is "derogatory to the stat us and dignity of a teacher". Explanation (b) set out in Statute 439-D is clearly attracted in the facts and circumstances of the case and the petitioner is clearly guilty of moral turpitude. In the facts and circumstances of this case, therefore, we find that the entire procedure has been followed strictly in conformity with the statute framed by the University of Mumbai and, therefore, it cannot be said that the disciplinary action impugned by the present petition has been taken contrary to or in breach of the "guidelines and norms".

       BOMBAY UNIVERSITY STATUTES - Statutes 439-A and 444-E - Misbehaviour with girl students - Termination of service. - The contention of the Counsel is that the case of the petitioner falls in the category of "little exception" carved out by the Supreme Court. Suffice it to say, in this regard, that similar contention was raised before the Tribunal. The Tribunal has devoted paragraphs 28 to 36 of the judgment on this issue and High Court does not find any reason not to agree with these observations of the Tribunal. In short, the Tribunal has observed, and we say correctly, that the case of the petitioner does not fall in the category of "little exception" carved out by the Supreme Court in the aforesaid case of Capt. M. Paul Anthony, AIR 1999 SC 1416 : 1999 (3) SCC 679. The Counsel appearing on behalf of the petitioner was not at all able to make even a dent in any of these findings of the Tribunal.

       Maharashtra Universities Act, 1994 - Section 14(8) - University of Bombay Statute 444 - Disciplinary proceedings - Natural justice - No opportunity of hearing required to be given to delinquent-servant under Statute 444 - Apex Court observed that question whether requirement of natural justice met by procedure adopted in a given case must depend upon a greater extent on facts and circumstances of case in point, Constitution of Tribunal and Rules under which it functions. - Inasmuch as the aforesaid argument of the petitioner now alleging breach of principles of natural justice is concerned, we may refer to the judgment of the Supreme Court delivered in the case of Suresh Koshy George v. University of Kerala, reported in AIR 1969 SC 198. Dealing with the requirement of the principles of natural justice in the context of argument advanced on behalf of the petitioner set out hereinabove, the Supreme Court in paragraph 15 of this judgment has observed thus :

       "There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that Article that every disciplinary proceeding must consist of two inquiries one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. Even if a show cause notice is provided by law, from that it does not follow that a copy of the report on the basis of which the show cause notice is issued should be made available to the person proceeded against or that another inquiry should be held thereafter."

       In the same judgment delivered in the case of Suresh Koshy George (supra) in paragraph 7, the Supreme Court has observed that the question whether the requirements of natural justice are being met by the procedure adopted in a given case must depend upon a greater extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. As demonstrated hereinabove, the relevant statute 444 does not at all contemplate giving of any opportunity to the petitioner which, in the submission of the counsel appearing on behalf of the petitioner ought to have been given to the petitioner. Courts are, therefore, unable to accept the submissions made in this regard on behalf of the petitioner.