Holding a domestic enquiry for certain acts
of misconduct, if not a criminal trial, is certainly
akin to a trial for proving charges. There is no
reason why the principles akin to the above should
also not apply in the matter of change or transfer in
relation to venue. In fact in order to assure a fair
trial and to comply with the principles of natural
justice, it would be appropriate to apply the said
general rule that ordinarily the charges for
misconduct must be tried at a place where events or
incidents leading to the charges have taken place. We
also hold that in the absence of rule or provision
prescribing the venue or place for holding domestic
enquiry, it must ordinarily be held as indicated by us
above. The place or venue of the enquiry could be
changed only in exceptional or such circumstances
beyond the control of the Management or the enquriy
officer or even the delinquents. But then the reasons
for such a change should be known. There may be cases
where the ordinary place for holding enquiry is
unsuitable, inconvenient or becoming riotous when the
change of venue could be justified and such
circumstances may be myriad and vary from case to
case.
Citation;2013(2) MH L J 804
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
LETTERS PATENT APPEAL NO.560/2011
IN
WRIT PETITION NO.1978/2011 (D)
Wainganga Bahu-uddeshiya Vikas
..Versus..
RESPONDENTS: 1. Diwakar s/o Maloji Kamble,
CORAM : SMT. VASANTI A. NAIK AND
A.B. CHAUDHARI, JJ.
Date of pronouncing the judgment : 26.09.2012
JUDGMENT (PER : A.B. CHAUDHARI, J.)
1. Heard. Admit. Taken up for final disposal
with the consent of the learned Counsel for the rival
parties.
2. In these Letters Patent Appeals, a common
judgment and order dated 12th September, 2011, passed
in Writ Petition Nos.1301/2011 (Wainganga
Bahuuddheshiya Vikas Sanstha and others Vs. Anil
Devaji Gaikwad and others), 1978 of 2011 (Diwakar
Maloji Kamble vs. Wainganga Bahuuddheshiya Vikas
Sanstha and others), 1979 of 2011 (Anil Dewaji
Gaikwad vs. Wainganga Bahuuddheshiya Vikas Sanstha
and others), 1315 of 2011 (Wainganga Bahuuddheshiya
Vikas Sanstha and others Vs. Rajkumar Kisanrao Bhagat
and others) and 1314 of 2011 ((Wainganga
Bahuuddheshiya Vikas Sanstha and others Vs. Diwakar
Maloji Kamble and others), by which the learned
Single Judge of this Court held that the prior
permission of the Nagpur University was required
before terminating the services of the original
appellants Anil Gaikwad, Diwakar Kamble and Rajkumar
Bhagat who had filed appeals before the University and
College Tribunal; and the orders made by the College
Tribunal to hold de novo enquiry against them and the
order directing reinstatement and payment of backwages were also confirmed.
FACTS:
3. Appellant No.1 Wainganga Bahuuddheshiya
Vikas Sanstha runs Rajiv Gandhi Mahavidyalaya at
Sadak-Arjuni, district Gondia. The three employees
[(i) Anil Gaikwad (ii) Diwakar Kamble and
(iii)Rajkumr Bhagat] were appointed in accordance with
the procedure for selection about which there is no
dispute. Anil Gaikwad was appointed as Lecturer in
Economics on 21.9.1996, Diwakar Kamble was appointed
as Lecturer in History on 21.9.1996, and Rajkumar
Bhagat was appointed as a Lecturer in Sociology on
25.9.1994. The appointment orders of these three
lecturers are similarly worded, so also the approvals
granted by the Nagpur University. The approval was
from the academic session of appointments and onwards
on ad hoc basis subject to the conditions as per the
Government Resolution dated 22.12.1995. Admittedly,
all three of them had completed minimum period of 24
months. They were chargesheeted by the Management for
certain acts of misconduct. Chargesheet was issued to
Anil Gaikwad on 23.1.2007, Diwakar Kamble on
25.6.2004, and Rajkumar Bhagat on 8.4.2002.
4. In order to conduct Departmental enquiries
against them, respective enquiry officers were
appointed. Upon completion of enquiries against them,
they were found guilty of majority of charges. After
receipt of the enquiry reports in each case, the
Management took decision and decided to terminate the
services of all of them by different termination
orders which were accordingly issued. All the three
employees filed three different appeals before the
University and College Tribunal under Section 59 of
the Maharashtra Universities Act, 1984. These appeals
were heard and disposed of by the Tribunal and were
allowed with certain findings against the Management
and certain findings against the employees. The
Management filed three writ petitions in this Court,
details in respect of which are already given here-inabove while Anil Gaikwad and Diwakar Kamble also filed
two writ petitions. These writ petitions were heard
by the learned Single Judge of this Court who disposed
of the same by the impugned judgment and order.
Hence, these Letters Patent Appeals, five in number,
were filed by the Management being dissatisfied with
the findings and orders made by the learned Single
Judge.
SUBMISSIONS :
5. In support of these Letters Patent Appeals,
Mr. Bhangde, learned Senior advocate with Mr. R.M.
Bhangde, made the following submissions :
(i) The Courts below have committed a
serious error of law in ignoring the basic principles
of pleadings and proof which vigorously apply even in
the cases of service matters and in particular, the
cases where orders of dismissal from service are made
consequent to the conduct of regular departmental
enquiry. Right from the decision in the case of
Shankar Vs. Britaniya Biscuits Co. A.I.R. 1979 SC
1652 followed in Navbharat Daily Vs. Navbharat
Shramik Sangha 1984 Mh.L.J. 483, the requirement of
pleadings has been held to be a pre-requisite even in
respect of the matters relating to the workmen.
Perusal of the memo of appeal before the College
Tribunal in all these cases will clearly show that the
pleadings for assailing the departmental enquiry or
the dismissal order etc. have not been made
specifically in order that the other side has a
sufficient and proper notice of what is going to be
urged in appeal. The learned counsel took us through
the memo of appeal, so also the replies to the memo of
appeal in all these cases and argued that the grounds
on which the termination of services of thelpa560.11.odt
12
respondents - employees have been set aside, have not
been specifically pleaded and therefore, on the
aforesaid principles the appeals preferred by the
employees ought to have been dismissed.
(ii) In the recent past, there has been
substantial change in respect of doctrine of natural
justice qua the domestic enquiries which are held
prior to the termination of the services of the
employees. The Apex Court has in a series of decisions
clearly held that the violation of principle of
natural justice cannot be inferred at the drop of a
hat, nay the test of prejudice has been elaborately
laid down by the Apex Court and that is the present
legal position which stands and is required to be
applied with full force in the instant cases as well.
(iii) Perusal of the pleadings and memo of
appeal in all these cases do not at all show
sufficient and proper pleadings for showing so called
prejudice allegedly caused to the employees after
commencement of enquiry, during the course of enquirylpa560.11.odt
13
and at the culmination of the enquiry. In absence of
proper pleadings and proof about the prejudice, the
Courts below could not have inferred the violation of
principles of natural justice and set aside the
order of dismissal of services of all these employees.
(iv) The 'real danger test' qua the bias
recognized by the Apex Court has not been satisfied in
all these cases and in the absence of satisfaction of
the said test, the Courts below could not have
inferred that the orders of termination of the
services of these employees were vitiated.
(v) There is no rule that the domestic
enquiry must be held at the headquarters of the
institution only. In these cases, at any rate, fact
remains that there was an implied consent on the part
of the employees in shifting venue of the domestic
enquiry from Sadak-Arjuni to Nagpur. There is nothing
in the pleadings and memo of appeal to show otherwise.
There are no pleadings as to how the employees were
aggrieved due to shifting of the venue to Nagpur. Inlpa560.11.odt
14
the absence of prejudice in the matter of shifting of
venue to Nagpur, the Courts below could not have held
that principles of natural justice were violated.
(vi) The memo of appeal nowhere speaks of
any complaint regarding non payment of salary or T.A.
D.A. because of the shifting of the venue from Sadak
Arjuni to Nagpur and in the absence of such pleadings,
no inference could be drawn about violation of
principles of natural justice. The initial burden of
proof being solely on the original appellants -
employees, the same having not been discharged, the
Management could not be expected to plead or lead any
evidence in rebuttal. There is failure on the part of
original appellants in proving their case and findings
recorded by the Court on non payment of T.A. D.A. and
alleged inconvenience due to shifting of venue are not
based on any materials much less legal materials
required to be placed on record. At any rate, mere
inconvenience would not vitiate the enquiry.
(vii) The application for demanding T.A. D.A.lpa560.11.odt
15
for the travel between Sadak Arjuni and Nagpur, if
seen, were made almost at the culmination of the
enquiry and not at the commencement of the enquiry.
This itself proves the case of the Management that no
prejudice was caused in respect of the grievance about
the payment of T.A. D.A. and shifting of venue which
the Courts below have given undue importance.
(viii) The conduct of the employees to prolong
the enquiry as much as they could is evident from the
order made by the Enquiry Officer which is speaking
order dated 26-4-2007 and shows how the employees were
interested in prolonging the enquiry and in fact they
succeeded in the same for about a period of three
years. The employees were, therefore, guilty of
clearly protracting the enquiry with ulterior motive.
(ix) The grievance of non payment of salary
did not arise because the college was entitled to
salary grant from the Government and it was the
responsibility of the Government to make payment of
the salary which made the same late and accordingly,lpa560.11.odt
16
the salaries were paid by the Management immediately
after receipt of the salary grants but then the
Management cannot be blamed for late payment. Still
by a pursis dated 24-3-2007, offer to pay salary,
T.A., D.A. was made.
(x) The employees were never put under
suspension during the course of enquiry or at any
point of time and therefore, the grievance about non
payment of subsistence allowance or any allowance
cannot survive. At any rate whatever T.A. D.A. that
was asked for shifting venue was paid; and some times
on their own volition the Management made the payment
of T.A. D.A. to employees in order that they attend
the enquiry with their representatives.
(xi) The grievance about non payment of T.A.
D.A. or salary or change of venue etc. were required
to be examined seriously in the sense whether the said
grievance existed or not. As a matter of fact, it will
be seen that after filing the applications for the
said purpose namely T.A. D.A. there was no furtherlpa560.11.odt
17
persuasion thereof which clearly indicates that
applications were mainly filed as a matter of
formality and not intended to be pursued in the real
sense. Thus, the grounds regarding change of venue or
non payment of T.A. D.A. and consequent vitiation of
enquiry are liable to be rejected forthwith.
(xii) Mr. Bhangde, learned Senior advocate,
then continued his argument on the issue of bias.
According to him, perusal of the memo of appeal does
not show specific pleadings regarding bias. Bias is
required to the pleaded and proved with proper
pleadings and evidence. To infer bias, the materials
required, must be satisfactory and answering the test
of bias on facts as well as in law. At any rate,
according to Mr. Bhangde, it is well settled legal
principle that enquiry is vitiated, if there is a
bias, provided it is conclusively found by the Court
from the stage where the vulnerability erupts.
According to him, the theory of percolation of bias
argued by the employees cannot be imported in these
cases. The submissions in the case of Anil Gaikwadlpa560.11.odt
18
that Mrs. Karanjkar participated in the process of
decision making and she had also issued the
chargesheet and she had appeared as a witness in
domestic enquiry against him still will not vitiate
the enquiry from the inception. The part of the
process of the decision making would alone be the
stage at which the bias could be alleged. What was
important was that the decision making process only
and therefore at the most, it ought to have been held
that enquiry due to bias is vitiated from that stage
and nothing more. Therefore, the proceedings held
could not have been vitiated prior in point of time to
the decision of inflicting punishment. Mr. Bhangde
conceded that at the most proceeding could be sent
back to the disciplinary authority, from the stage of
taking decision in respect of the punishment to be
imposed, in which Mrs. Karanjkar would not be
included.
(xiii) In the case of Diwakar Kamble, Mr.
Bhangde argued that in his case chargesheet was not
issued by Mrs. Karanjkar though she had appeared as
witness and had also participated in the decisionlpa560.11.odt
19
making process. Therefore, the theory of existence of
bias at the most could be applied from the stage of
decision making process as in the case of Anil
Gaikwad.
(xiv) Strongly assailing the view taken by
the learned Single Judge on the requirement of prior
permission of the University before effecting
termination of services of these employees, Mr.
Bhangde, learned Senior Advocate, vehemently argued
that Statute 53 and relevant clauses of Ordinance 24
have not been correctly read and interpreted by the
Courts below. He took us through the appointment
orders of all the employees and argued that admittedly
not a single appointment order of these employees was
on permanent basis nor there is confirmation order
issued to any of them. Even the approval granted by
the University is not in the nature of confirmation of
their services. According to him, factually,
therefore, there is no evidence on record which was
required to be brought by the original appellants that
the appointment was on clear vacancy in the firstlpa560.11.odt
20
place and, secondly, that it was confirmed by formal
order of confirmation in the service. Apart from
that, Mr. Bhangde continued to argue that none of
these employees possess NET/SET qualification, even
now and it is not in dispute that NET/SET
qualification is pre-requisite for being in
employment. It is a different matter, according to
Mr. Bhangde that the State Government had granted
exemption only with a view to protect their services
till their retirement but then the status conferred on
them as is clarified in the relevant Government
resolution itself is of ad hoc nature. The learned
Single Judge, according to him, however, ignored the
said legal status of these employees of 'ad-hoc'
nature and, therefore, the interpretation about
application of provisions regarding prior permission
is clearly illegal and, thus, liable to be set aside.
Mr. Bhangde took us through the various Government
resolutions which are regarding confirmation of
service, qualifications for appointment to a
particular post of Lecturer and so on and so forth.
The learned Senior Counsel, on these aspects,lpa560.11.odt
21
concluded by saying that none of these employees were
having protection required before dispensing with
their services. At any rate, the services of the
employees have been terminated not simplicitor but on
the ground of serious misconduct proved against them
in the enquiry, prior permission of the University
before termination was not at all required.
Mr.Bhangde then urged, in the case of Rajkumar Bhagat
that perusal of his appeal memo will show that the
pleadings are scanty and on the basis of those
pleadings neither the Tribunal nor the learned Single
Judge could have granted any relief to Rajkumar
Bhagat. According to him, after the decision of the
Tribunal, the said employee Rajkumar Bhagat did not
file any writ petition in this Court as was done by
Anil Gaikwad and Diwakar Kamble and, therefore, the
findings adverse to him were accepted by him. Even
then the learned Single Judge granted relief to
Rajkumar Bhagat while disposing of the writ petition
against him filed by the Management which is wholly
illegal. He prayed for allowing these appeals. He
cited following decisions: lpa560.11.odt
22
(A) 2008 (7) Supreme Court
Cases 153 (Pramod Kumar...Versus...U.P.
Secondary Education Services Commission
and others).
(B) 2004 (9) Supreme Court
Cases 747 (ICICI Ltd....Versus...Ahmedabad
Manufacturing & Calico Printing Co. Ltd.
and another).
(C) 2005 (12) Supreme Court
Cases 219 (Pradeep Kumar...Versus...Union
of India and others).
(D) 2007 (4) Supreme Court
Cases 241 (Bhagubhai Dhanabhai Khalasi and
another...Versus...State of Gujarat and
others).
(E) 1996 (9) Supreme Court
Cases 322 (State of Punjab and
others...Versus...Dr. Harbhajan Singh
Greasy).
(F) 2008 (12) Supreme Court
Cases 30 (Union of India...Versus...Y.S.
Sadhu, Ex-Inspector).
(G) 2005 (8) Supreme Court
Cases 211 (U.P. State Textile Corpn.
Ltd....Versus...P.C. Chaturvedi and
others).
(H) 1976 (3) Supreme Court
Cases 574 (R.C. Sharma...Versus...Union oflpa560.11.odt
23
India and others).
(I) 2008 (9) Supreme Court
Cases 31 (Haryana Financial Corporation
and another...Versus...Kailash Chandra
Ahuja).
(J) 2012 (4) Supreme Court
Cases 653 (N.K. Bajpai...Versus...Union of
India and another).
(K) 2011 (10) Supreme Court
Cases 106 (Lalit Kumar
Modi...Versus...Board of Control for
Cricket in India and others).
(L) 2010 (5) Supreme Court
Cases 349 (Union of India and
others...Versus...Alok Kumar).
6. Per contra, Mr. A.M. Gordey, learned Senior
Advocate with Mr. N.R. Patil and Mr. Raghute for the
employees made the following submissions :-
(i) The memo of appeal filed by the
employees in all these cases cannot be read in
isolation, but it will have to be read in the context
of the documents as well and record of the enquiry
proceedings to find out whether the pleadings are
adequate and the courts found the existence thereoflpa560.11.odt
24
and therefore recorded the findings of facts in favour
of the employees. The law of pleadings does not
require that even the evidence should be pleaded in
the pleadings and therefore, no hard and fast rule
can be laid that each and every fact must be
incorporated in the pleadings nor such pleadings could
be dubbed as insufficient or improper. According to
Mr. Gordey, perusal of the memo of appeal in all
these cases clearly shows that all the material
pleadings have been set out giving clear indication to
the Management or the respondents to the appeals, as
to the grounds that were set up in support of the
appeals. The various documents and the report of the
Enquiry Committee filed on the record in that context
were within full knowledge of the Management and
Enquiry Committee as well and therefore, it cannot be
said that the Management did not have notice in
respect of grounds which were raised for assailing the
domestic enquiry as well as the orders of termination.
(ii) The basic principle regarding the test
of prejudice to find out whether the principles oflpa560.11.odt
25
natural justice have been violated or whether the
entire enquiry is fully vitiated and if not,from what
stage it is vitiated, is a matter to be decided on the
facts of each case. In the instant case, according to
Mr. Gordey, the prejudice is clearly borne out from
the record and proceedings, various applications filed
by the employees and the facts which are germane. All
these facts are within the knowledge of the
respondents to the original appeals and therefore, it
cannot be said that further pleadings by couching the
word 'prejudice' were required to be incorporated with
emphasis thereon. According to him, it is for the
Court to find out from the facts, documents, evidence
on record, whether the test of prejudice has been
satisfied or not and that is what has been found out
by the Courts below and therefore, in the Letters
Patent Appeal those findings of facts cannot be
disturbed.
(iii) The entire record of the domestic
enquiry does not anywhere show that any consent was
obtained from the employees in writing for shiftinglpa560.11.odt
26
the enquiry to Nagpur from Sadak-Arjuni. No reason is
forthcoming to show why such step was taken in all the
three cases, particularly when, the headquarter is at
Sadak-Arjuni, the witnesses hailed from Sadak-Arjuni,
so also the employees. Burden to explain was certainly
on Management, which was not discharged and therefore,
the prejudice caused to the employees to attend the
enquiry at Nagpur travelling 120 k.m. from SadakArjuni on various dates of enquiry, will have to be
inferred. In fact, it is duty of the Court to draw
inference. Inviting our attention to the various
applications filed by the employees, Mr. Gordey,
argued that applications for payment of T.A. D.A. and
salary, clearly show even the oral requests were made
to Management and Enquiry Officer and that is evident
from the record and, therefore, it cannot be further
expected that the same should have been pleaded in an
elaborate manner when the documents speak for
themselves. Not only that there are orders of Enquiry
Officer in all these cases to provide T.A. D.A. to
employees and therefore, it cannot be said that the
Management or the Enquiry Officer were not aware oflpa560.11.odt
27
the prejudice being caused to the employees at the
relevant time when the enquiry was being conducted.
Thus, from the beginning of the enquiry the employees
were shouting about the non payment of the allowances
and the salaries as well. The expectation that the
employees should have pursued the applications which
were filed by them for salary, T.A. D.A. and for
change of venue, time and again would have been an
exercise in futility. Once they had made applications
to the Enquiry Officer and the Management, to expect
them to pursue their applications each and every time
would be absurd. It was the duty of the Enquiry
Officer as well as Management to make payments
regularly and they failed.
(iv) The enquiry in these cases is clearly
vitiated for want of payment of salaries, T.A. D.A. to
the employees, particularly, in view of the fact that
the venue was changed immediately after the initial
formal dates given at Sadak Arjuni and thereafter, the
venue was shifted to Nagpur. According to him, enquiry
was shifted to Nagpur for convenience of the advocateslpa560.11.odt
28
who were appointed as Enquiry Officer and the
presenting officers. It was wrong on the part of the
Enquiry Officer and Management to look at the
convenience of Enquiry Officers and presenting
officers at the cost of denial of opportunity to the
employees to defend themselves in a proper mental set
up and with no pressures.
(v) The enquiry was kept at Nagpur mostly
in the evening and so conducted till late night which
itself is abnormal and then the employees were
required to go back to their places at Sadak-Arjuni at
a distance of 120 k.m. for which even the proper and
regular facilities of public transport is not
available and they were even required to board a truck
for reaching their house at Sadak-Arjuni. Such type of
conduct of enquiry was certainly bound to break the
physical and mental condition of the employees which
was systematically adopted by the Management and
Enquiry Officers.
(vi) As to the bias, Mr. Gordey, learnedlpa560.11.odt
29
Senior advocate argued that admittedly the chargesheet
was issued by Mrs. Karanjkar in the case of Anil
Gaikwad. Further, admittedly, she had appeared as a
witness in the cases of Anil Gaikwad and Diwakar
Kamble and in both these cases, she had participated
in decision making process of terminating the services
of these two employees based on the enquiry reports.
He further argued that appearance of Mrs. Karanjkar as
a witness in the enquiry to prove the case of
Management when she herself has been a part of
Management which was to take decision ultimately, the
bias was writ large. The fact that Mrs. Karanjkar
appeared as a witness against both of them in the
enquiry and then took decision along with others to
terminate the services of these employees in which she
had appeared to prove the charges, would certainly
show that the theory of percolation of bias would
apply and therefore, it will have to be held that the
enquiry is vitiated right from the beginning and
therefore, has rightly been set aside.
(vii) As to the prior permission oflpa560.11.odt
30
University before terminating the services of the
employees, Mr. Gordey strongly supported the findings
recorded by the learned Single Judge in its common
judgment. He further argued that the very object of
providing for prior permission of University before
terminating the services of the employees was to
extend protection to the employees who have completed
considerable years of service with the employer and
as held by the Full Bench in the case of Premlata
Sudhakar Sathe vs. Governing Body of G.S. Tompe
College, reported in 1981, Mh.L.J. 332, the said
provision was inserted by the University with a view
to prevent unscrupulous employer from throwing out
employee from the employment. According to Mr. Gordey,
the object of providing for prior permission as
expounded by the full bench of this Court will have to
be borne in mind. The qualification NET/SET was
eventually brought in the year 1991 for the first
time. Mr. Gordey, thus, urged that the findings
recorded by the learned Single Judge are perfectly
legal, correct and proper and cannot be interfered
with. He therefore, prayed for dismissal of the
appeals. He cited the following decisions. lpa560.11.odt
31
(a) AIR 1984 Supreme Court 1356 (Arjun
Chaubey...Versus...Union of India and others).
(b) Rattan Lal Sharma...Versus...Managing
Committee, Dr. Hari Ram (Co-Education) Higher
Secondary School and others).
7. Mr. Raghute, the learned learned Advocate
for Rajkumar Bhagat argued that the termination was
not effected by the competent authority i.e. the
Governing Body and hence, it is illegal. But none of
the Courts have addressed the said issue though was
raised. He assailed the findings of the learned Single
Judge about violation of principles of natural justice
due to change of venue, non-payment of T.A.D.A. and
regular salary; and that of Tribunal on the question
of prior permission of the University.
8. Mr. Jaiswal, learned Counsel for University
supported the impugned judgment of the learned Single
Judge and argued that the University has taken a clear
stand before the College Tribunal by filing the
written statement/ additional written statement that
the prior permission is required wherein the employeeslpa560.11.odt
32
completed more than two years of the service
irrespective of the fact that the approval was ad hoc.
Mr. Jaiswal argued that employees had served for 12-14
years and that by itself was enough to hold in the
light of the provisions of Statute 53 and Ordinance 24
that the prior permission of the University was
required to be obtained. According to him, the
Executive Council is entitled to verify the bona fides
on the part of the Management before according
permission to terminate the services of such
employees. He challenged the contrary finding of the
Tribunal as illegal and perverse and prayer for
setting aside the same. He finally prayed for
dismissal of the appeals.
CONSIDERATION :
9. We have heard learned Counsel for the rival
parties on several dates. We have perused the entire
record and proceedings. It would be proper for us to
give some facts which are borne out of record of the
enquiry committee and the College Tribunal. It appears
that a group of employees in the said Rajiv Gandhilpa560.11.odt
33
Mahavidyalaya, Sadak-Arjuni, was agitated for several
reasons and one of the reasons pleaded by these three
employees is that they were not regularly getting
their salary because the salary bills were not being
sent to the Joint Director of Higher Education
regularly and that had happened, according to them,
because of vacancy of the post of Principal who was
supposed to sign the bills and the allegations that
the President and the office bearers of the Management
of the college wanted to have a lion's share from the
salary of the employees. By and large, the
allegations in the chargesheet issued to these
employees were of the following nature:
(i) Delinquents had made false allegations
against the Management about financial irregularities
which was insubordination.
(ii) Letter to University was addressed by
the delinquents to grant approval to Rajkumar Bhagat
as officiating principal thereby undermining the
authority of the Management. lpa560.11.odt
34
(iii) Employees formed a group and made
adverse publication against principal and Management
of the college in the newspapers.
(iv) Instigated the students to go on strike
on 11.1.2001 for one day.
(v) In 1999 and 2001, they left the
Headquarters without permission of the principal.
(vi) Dereliction of duties in not following
the order to work as officiating principal of the
college.
(vii) 2002-2003: Refused to obey the orders
of the Management to conduct practicals.
(viii) Lodged complaints to the Police Station
and University against the office bearers of the
Management.
(ix) Created terror in the college.
(x) Did not attend the meeting on 20th
Sept.,1998, called by the President.
(xi) Made allegations against the Management
directly to the Vice Chancellor.
(xii) Refused the orders to sign the transfer
certificates of the students.lpa560.11.odt
35
(xiii) Anil Gaikwad had projected and
unsuccessfully attempted to get a false medical bill
of his father's treatment for angioplasty in the sum
of Rs.1.5 lacs.
10. FURTHER FACTS AND EVIDENCE :
ANIL GAIKWAD
To the chargesheet dated 23.1.2007, he filed
his reply on 16.2.2007. The first date of enquiry was
3.3.2007 at Nagpur when the Enquiry Officer
Shri S.V.Akolkar, Advocate, and Dr. S.M.Rajan as
presenting officer, conducted the proceedings and by
Exh.3 application Anil Gaikwad requested that he
required 2/3 weeks time to engage representative and
that the enquiry proceeding should be held at Rajiv
Gandhi Mahavidyalaya, Sadak-Arjuni since he was not in
a position to bring his representative at such a long
distance and it was too expensive for him and that is
why the enquiry should be held at the Headquarters.
The enquiry officer though made endorsement on the
application-Exh.3 did not pass any specific order
about his request to hold the enquiry at thelpa560.11.odt
36
headquarters and about the issue of expenditure
mentioned by him. Thereafter, on 8.3.2007, the date
was fixed in the college at Sadak-Arjuni and they
attended the proceedings at Sadak-Arjuni. However, the
next date for recording evidence was abruptly fixed at
Lokmat Bhawan, Nagpur, on 17th March, 2007, at 3 p.m.
and there is no reason any where on record as to why
contrary to the request to fix the enquiry at
headquarters, venue was changed to Nagpur which is at
a distance of 120 kms. from Sadak-Arjuni.
Thereafter, on 17th March, 2007, enquiry was held at
Lokmat Bhawan, Nagpur, when he filed application to
collect the documents which was rejected and the
examination in chief of witness for the Management
Shri Bakht was recorded and was adjourned to
24.3.2007. On 24.3.2007, representative of
Shri Gaikwad cross examined him and the enquiry was
posted to 27.3.2007. At this stage, Management filed
a Pursis before the enquiry officer with reference to
application Exh.5 that was filed by Anil Gaikwad on
17.3.2007 that he had not received the salary for last
three months and was unable to engage his Counsel. Inlpa560.11.odt
37
this pursis, the Management stated that it was ready
to settle salary due and TA/DA as well for the
respective dates. Along with the Pursis, the
Management filed letter addressed to him dated
19.3.2007, taking jibe at him by stating that he
should get cleared his pending salary for three months
on his own from the Joint Director which Management
knew was impossible. It was then stated with sarcasm
that if the Management attempts to make payment to
him, he would make complaints to the authorities about
financial irregularities as was done in the past and
in that case his allegations against the Management
about the same would be proved wrong. Then, it is
further asked to him that, if the salary is paid by
the Management till receipt thereof from the Joint
Director, whether he would return the same along with
interest to the Management. Lastly, it was stated that
if he makes an application in writing for payment of
salary for three months, he will have to give post
dated cheques and, for Travelling Allowance (T.A.) and
Dearness Allowance (D.A.), he would have to give
written applications and proof of the travel and otherlpa560.11.odt
38
expenses. The fact remains that the said salary and
T.A., D.A. of three months was not paid by the
Management at all in spite of above sermons given to
him till 13th April 2007. Now, as reported before us,
the salary grant was was received by the Management on
7th April, 2007, for the salary of the months
September, October and November, 2006 and was paid to
Anil Gaikwad on 13.4.2007 while the evidence of the
Management was completed by 27.4.2007. Thus, right
from 23.1.2007 i.e. issuance of chargesheet till
completion of evidence of the Management in the
enquiry proceedings held at Nagpur, the delinquent
Anil Gaikwad was paid no salary at all. Not only
that, he was also not paid T.A.D.A. for the said
period and it is submitted before us that the T.A.D.A.
was not paid to him because he had not submitted the
bills during that period about the actual expenditure
incurred by him but he submitted the bills at the end
of the enquiry on 7.1.2009 and was therefore paid
TA/DA on 3.10.2009 in the sum of Rs.21,200/- i.e. long
after the evidence of the Management in the enquiry
was concluded. Thus, the Management clearly deridedlpa560.11.odt
39
him. Thereafter, the stage came for the examination
of delinquent and his witnesses. On 5.4.2007, the
enquiry officer Mr. Akolkar resigned and on 8.4.2007
another enquiry officer Advocate Mr. S.S.Ghadge and
Advocate Mr. S.S.Joshi, as presenting officer, both
from Nagpur were appointed, who held the proceedings
at Nagpur on 8.4.2007 and adjourned it to 9.4.2007
when the Management filed 87 documents and delinquent
filed 91 documents. Thereafter, the proceedings were
conducted on 11.4.2007 at 4.30 p.m. onwards and on
18.4.2007, 19.4.2007, 20.4.2007, 25.4.2007, 26.4.2007,
27.4.2007 on which date the evidence of the Management
was closed. Thereafter, on 29.4.2007, Anil Gaikwad
filed an application that he suffered from high blood
pressure (159/110), cervical spondylitis as certified
by the Civil Surgeon but at the request of the
Management he was referred to the medical board.
Then, on 11.6.2007, he filed his affidavit evidence
along with the list of seven witnesses residing near
Sadak-Arjuni. He was cross examined on 13.6.2007,
21.6.2007 and thereafter on 22.7.2007. Enquiry Officer
Shri S.S.Ghadge was appointed as District Judge. Onlpa560.11.odt
40
17.1.2008, Advocate Shri P.C. Marpakwar was appointed
as enquiry officer who posted the enquiry on 21.1.2008
in the evening at 7 p.m. and he conducted the
proceedings till conclusion. There is absolutely no
pleading or materials on record placed by the
Management as to when and in what mode and manner
salary for the period from December 2006 till the
culmination of enquiry was paid. That ought to have
been disclosed by the Management since the non-payment
of salary for several months to the employees had been
a regular feature which is clear from several
documents on record.
11. The submission made by Shri Gordey that the
enquiry was conducted mostly in the evening is not
correct, at least till 21.1.2008, since till then
enquiry was conducted in the afternoon though at
Nagpur. However, after 21.1.2008, it clearly appears
that the enquiry was conducted, on all dates, after
7 p.m. and that was obviously for the convenience of
new Enquiry Officer Shri Marpakwar, Advocate,
Mr.Joshi, Advocate, presenting officer andlpa560.11.odt
41
Shri N.R.Patil, Advocate, for the delinquent. On
25.4.2007, Anil Gaikwad had filed an application
stating therein that he was always of the view that
the enquiry should be conducted at the headquarters
at Sadak-Arjuni and if it is held at Nagpur, it be
held only once in a week preferably on Saturday, and
since 2/3 weeks he was feeling weak and had pain in
the chest and was advised by the Doctor to avoid
travelling long distances and, therefore, the enquiry
proceedings should be held at Sadak-Arjuni
permanently. Thereafter, on 13.8.2008, he filed
another application stating that as enquiry
proceedings were fixed after 7 p.m., no buses were
available for making journey of 120 kms. and many
times, he reached home at about 1 a.m. to 3 a.m. in
the night that too by boarding truck from the highway.
He also suffered an accident and, in absence of proper
conveyance, it was difficult to attend the enquiry
which should not be held in the evening.
Another application dated 28.4.2007 refers
to his previous application dated 25.4.2007 whereinlpa560.11.odt
42
similar grievance is made. There is one more
application on page No.577 of the record filed by him
stating that in spite of illness he was present in the
enquiry and reserved his right to seek justice. On
26.4.2007 when one of his Advocate Shri A.R. Sambre
withdrew, he informed the enquiry officer accordingly
and sought adjournment but the enquiry officer made a
hard hitting order dated 26.4.2007 which we have seen
and we find that the said order shows wholly one sided
approach. only to condemn him.
12. FURTHER FACTS AND EVIDENCE
DIWAKAR KAMBLE:
Chargesheet was issued to him on 5.6.2004.
Diwakar Kamble filed his reply to chargesheet on
26.4.2004 and in the covering letter he stated thus:
Since the college is at
Sadak-Arjuni and I am residing at SadakArjuni itself, it is expected that the
enquiry should be held at Sadak-Arjuni only.
It is further requested to further disburse
my unpaid salary immediately so that I canlpa560.11.odt
43
effectively participate in the enquiry.
13. Shri B.R. Taori (retired judicial Officer)
was appointed as enquiry officer who held first
sitting on 17.11.2004 and conducted the enquiry till
1.4.2005 at Nagpur. On 24.10.2005 since he resigned,
Advocate Shri H.D.Dangre was appointed as enquiry
officer.
It appears that, he was not paid salary for
about 11 months as on that date i.e. on 26.4.2004.
After the appointment of Advocate Mr. H.D. Dangre as
enquiry officer, the first sitting took place on
11.12.2005 in his office at Nagpur and thereafter on
19.12.2005, 20.12.2005, 11.2.2006, 7.2.2006, 1.3.2006,
8.3.2006, 18.3.2006, 25.3.2006, 8.4.2006, 11.5.2006,
21.5.2006, 10.6.2006, 3.3.2007 and 10.3.2007 on which
dates Management closed its evidence and, thereafter,
from 10.4.2007, the delinquent and his witnesses were
examined and cross-examined till 30.7.2007. when
delinquent closed his side. Written note of argument
was filed by the Management on 9.12.2007 and by the
delinquent on 17.12.2007 and thereafter, it is statedlpa560.11.odt
44
that oral hearing had taken place on 18.12.2007 and
alleged re-hearing on 26.9.2008 i.e. after nine months
and, thereafter, enquiry report was submitted after
about six months by Shri Dangre. To sum up, right
from 17.11.2004 till the last date i.. 17.11.2007, all
the sittings were held at Nagpur. There is no evidence
of payment of T.A.D.A. to the delinquent or his
witnesses from 17.11.2004 till 17.11.2007.
14. FURTHER FACTS AND EVIDENCE
RAJKUMAR BHAGAT
Chargesheet was issued to him on 8.4.2002. One
Mr. P.K. Halwe, Advocate, was appointed as enquiry
officer who held his first sitting on 9.5.2002 at
Sadak-Arjuni and continued to do so at Sadak-Arjuni
till 27.7.2002. In his case an order dated 26.4.2006
was passed in his appeal by the College Tribunal for
production of the entire record of the enquiry
proceedings. Mr. Raghute has made a grievance before
us that the entire record of the enquiry was not
produced before the Tribunal in spite of the said
order by the Tribunal to produce the record. Pursuantlpa560.11.odt
45
to that, Mr. Bhangde, learned Senior Advocate, has
produced before us the remaining record in the case of
Rajkumar Bhagat which are the order sheets etc.. We
do not think that we would be making any mistake in
law in considering the documents in the said file,
since the file has come to us from proper custody and
at any rate there was a Tribunal's order dated
26.4.2006 to produce it.
15. We have perused the said file produced by
Mr. Bhangde. It is seen that on 27.7.2002 at SadakArjuni, next date was fixed 4.8.2002 at Nagpur and the
enquiry was conducted at Nagpur till it was over on
24.4.2004. During enquiry, on 10.10.2002, Advocate Mr.
S.V.Akolkar was appointed as enquiry officer and
thereafter Advocate Mr. A.M. Deshpande was appointed
in his place. The proceedings at Nagpur took place on
the following dates;
04.08.2002, 10.08.2002, 18.08.2002, 25.08.2002,
01.09.2002, 06.10.2002, 10.10.2002, 12.10.2002,
26.10.2022, 17.11.2002, 01.12.2002, 08.12.2002,
18.12.2002, 31.12.2002, 04.01.2003, 12.01.2003,
15.01.2003, 18.01.2003 and - 04.04.2004.lpa560.11.odt
46
Total T.A./D.A. was paid to him as under:
27.09.2003 Rs.5000/-, 30.11.2003 Rs.1320/-,
10.01.2004 Rs. 2000/- 31.03.2004 Rs. 1596/-.
16. There is nothing to show why the venue was
shifted to Nagpur from Sadak-Arjuni on 04.08.2002. But
the order sheet dated 24.08.2003 shows consent for
the place or address at Nagpur for holding enquiry
subject to payment of T.A./D.A.. On 7.9.2003, he made
a grievance that for last seven months i.e. from
February 2003, his salary was not paid. There is no
evidence to show that he was paid the salary of seven
months. That means, without salary from February
2003, he attended sittings at Nagpur from February
2003 till September 2003. There is no evidence when
and by what manner his salary after September 2003 was
paid. This was all the more significant in view of the
admitted position that salaries of employees were not
being regularly paid due to disputes.
17. After having made survey of the facts and
evidence as above, we now proceed to determine the
questions raised before us.lpa560.11.odt
47
PLEADINGS AND PROOF :
We have perused the various decisions about
requirement of pleadings and proof even in respect of
the disputes between workman and employer, employer
and employee. We have no quarrel with the
propositions. We have therefore gone through the
pleadings in all these appeals and we are satisfied
about the existence of material pleadings read with
documents on the record of the Enquiry Committee and
the Tribunal of which the appellants - Management had
notice. Since the pleadings in respect of Diwakar and
Anil are almost same, we quote the same from the memo
of appeal.
FACTS AND GROUNDS.
As regards the facts in the instant
matter, the appellant craves leave to read
and refer to the facts in the instant
matter from the various documents, replies,
submissions placed on record by the
Appellant in response to the charge-sheet
Dt. 05.06.2004 and all the proceedings
initiated thereunder by the Management i.e.
Respondent No.1 and the record of enquirylpa560.11.odt
48
proceedings and so also the documents and
replies given by the Appellant to the
alleged second show-cause notice Dt.
12.05.2009 and other documents for the
reason that the record of the enquiry has
become very voluminous.
The appellant herewith also
annexes the explanation Dt. 06.05.2009
addressed to the Respondent No. 1 i.e. the
explanation with regard to the finding of
the Enquiry Officer and the explanation
and reply to the second show cause-notice
dated 19.05.2009 as Annexures D & E
respectively. The appellant state that the
contents of abovesaid annexures are true
and correct and the appellant craves leave
to read and refer to the abovesaid
annexures as contents of the instant
Memorandum of Appeal apart from the brief
facts stated thereinabove and hereunder
mentioned. So also the grounds of instant
appeal.
The enquiry proceedings were also
held at Nagpur and not at the Headquarters
i.e. at Sadak-Arjuni, Distt. Gondia. That
is reason sufficient for holding the
enquiry proceedings as illegal, arbitrary
and without complying the principles oflpa560.11.odt
49
natural justice. The Appellant had time
and again requested for holding the enquiry
proceedings at the Headquarters and at a
suitable time, date and place but the same
was not considered by the Enquiry Officer.
The arguments in the enquiry
proceedings ended on 30.7.2007 and though
the written notes of arguments were filed
in December, 2007 itself, the report of
enquiry was not issued till April, 2009.
Thereafter there were no hearing or rehearing on any date and it is falsely
contended or observed in the report of the
Enquiry Officer that enquiry was fixed for
re-hearing and clarification on 29.9.08.
Even if it is assumed, though not admitted,
the enquiry proceedings were closed for
issuance of enquiry report on 29.9.2008,
yet the period between 29.9.2008 to
4.4.2009 is more than 6 months that itself
require the matter to be re-fixed for
hearing as it is required no report or
judgment or orders are not to be passed
after 6 months the matter is closed for
such a stage without having had re-heard
the parties after the expiry of 6 months.
Thus the report of enquiry is vitiated.
The Appellant started workinglpa560.11.odt
50
with the Respondent No. 3 College since the
year 1993 and he came to be selected under
proper procedure in 1996 and he has served
for a continuous period as Lecturer in
History in Respondent No.3-College. Thus
the appellant is a confirmed, permanent and
regularised lecturer in respondent No.3-
College and governed by Statute 53 read
with Direction 22 of 2002 issued by the
Hon'ble Vice-Chancellor of R.T.M., Nagpur
University under Sec. 14(8) of Maharashtra
Universities Act, 1994. Thus the
respondent No. 1 and all the Respondents
know and knew that the services of the
Appellant cannot be terminated without
permission and approval of R.T.M. Nagpur
University, thus since the Respondent No. 1
or anybody acting thereunder has not sought
any permission of the Respondent No. 4
University to terminate the services of the
appellant and therefore, the order impugned
in the instant appeal i.e. void-ab-initio.
DOCUMENTS.
(i) Covering letter dated 16.4.2004 to
reply to the charge-sheet by Diwakar
Kamble.
I submit that the charge-sheet is
voluminous and running into 320 pageslpa560.11.odt
51
along with the documents it is not possible
for me to have a legal advise and file
reply in detailed within 10 days.
Since the suspension order (which
is now withdrawn and I have joined the
duties) I had not been paid subsistence
allowance and salary and now I am facing
financial hardship. Due to financial
crunch, it is not possible for me to
arrange for legal fees and prepare a
suitable reply within 10 days.
(ii) Reply to articles of charges
preliminary objection, end of para 3.
I have been served upon the
suspension order dated 28.7.2003. It is
submitted that no prior permission was
taken from the Nagpur University before
suspending me and I had not been paid any
subsistence allowance nor the salary, now
the Management has withdrawn the suspension
order and despite this had not paid me the
salary of last 11 months.
(iii) Covering letter dated 24.6.2004
by Diwakar Kamble enclosing reply to
imputation of charges, para 2.lpa560.11.odt
52
Since the college is at SadakArjuni and I am residing at Sadak-Arjuni
itself, it is expected that the enquiry
should be held at Sadak-Arjuni only. It is
further requested to disburse my unpaid
salary immediately so that I can
effectually participate in the enquiry.
(iv) Written Notes of arguments by Diwakar
Kamble, portion from paras 5 and 7.
It is pertinent to mention here
that the salary of almost 11 months is not
paid. However, the instant charge sheet
has been issued by the Management more
particularly the president only to harass
me for the reasons best known to him.
It is submitted that the
delinquent was put to unnecessarily
hardship since the salary and travelling
allowance has not been paid by the
Management till today. It is further
submitted that the enquiry has to be
vitiated on this count only. The
Management put the delinquent with
unwarranted harassment at the hands of the
Management for no fault.
(v) Explanation dated 6.5.2009 by Diwakar
Kamble to the enquiry report, portion from
para 4.lpa560.11.odt
53
The said interim report also
observed that the salary is directed to be
paid of the lecturers which is pending of 9
months at that point of time. It is also
established in the evidence that I and
other lecturers were required to go to
court for payment of our increment, unpaid
salary and other allowances and the said
petition was withdrawn because of the
undertaking given by the Management before
the Hon'ble Court that the salary and
increment and other allowances which are in
arrears of the lecturers including me will
be paid expeditiously.
(vi) Explanation dated 19.5.2009 by Diwakar
Kamble addressed to the President in
response to President's letter dated
24.4.2009, translated paras. 1, 2 & 5.
1. Enquiry instituted against me by
the Institution is most unjust. Hon'ble
President issued me the suspension order on
28.07.2003. The said suspension order was
issued to me for not signing transfer
certificates of the college students as I
was not the Principal and it was further
mentioned that in this regard, thelpa560.11.odt
54
Institution will commence enquiry
proceedings against me. However, no enquiry
proceedings were conducted by the
Institution for the period of 9 months
subsequent to the suspension order.
Similarly, I was not given the due
allowances for the suspension period.
During this entire period, I was mentally
and financially exploited by the
Institution by not conducting enquiry of
any sort, by not issuing me chargesheet and
giving me the pay for suspension period.
2. As I was not given subsistence
allowance for suspension period as per
rule, I had to make an appeal to the
Complaint Redressal Committee of the Nagpur
University on 15.10.2003. The Complaint
Redressal Committee of the University gave
decision on my appeal on 21st October 2004
that the Institution should give me the pay
for suspension period within 7 days. I
forwarded a copy of the said decision to
the Hon'ble President and requested to give
me the pay for suspension period. However,
the Institution took no cognizance of the
University's Complaint Redressal Committee.
As a result, I preferred an appeal in the
High Court of Bombay, Bench at Nagpur vide
Writ Petition No.6158/2004 datedlpa560.11.odt
55
16.08.2004. Subsequently, after the
decision of the Hon'ble High Court, I was
given pay for suspension period by the
Institution. Thus, I had to suffer from the
unjust financial loss because at first, I
was deprived of pay for suspension period
by the Institution and then, moreover, I
had to do litigation in the Court of law.
It proves that during suspension period,
the Institution has exploited me
financially and mentally.
5. Proceedings of the said enquiry
are conducted against the principles of
natural justice. After issuing me the
suspension order, the Institution neither
issued me the chargesheet for about 11
months nor gave me pay for period of
suspension. After enquiry commenced,
meetings of enquiry committee were held in
the office of Enquiry Officer at Nagpur.
Therefore, in order to appear before the
Enquiry Officer I had to travel to and fro
120 kilometers every day. Similarly, I had
to travel during odd hours. The said
meetings used to continue till 8.00 p.m..
As a result, many a times I had to travel
up to 12 to 1'O' clock at night even by
truck also. I was not given in time the
Travel Allowance and Daily Allowancelpa560.11.odt
56
payable during enquiry period. I was given
the said Travel Allowance and Daily
Allowance after one full year from the date
of the last meeting of said enquiry and as
such, I was subjected to mental and
physical exploitation during the period of
enquiry.
Application for grant of T.A. and D.A.
Dated 14.8.2007
To,
The President,
Vainganga Bahu Uddeshiya Vikas Sanstha,
Nagpur.
Subject : To grant daily allowance and
travel allowance with regard
to the meetings of Enquiry
Committee.
Sir,
Enquiry held by the Management is in
progress since 5.12.2004 till this day. To
attend the said meetings, I am required to
travel from Sadak-Arjuni to Nagpur. In
every meeting, in spite of making verbal
demands for D.A. and T.A. to the
representative of the Institution
repeatedly, I have not been given the same
till date. As a result, I am facing
financial crisis.lpa560.11.odt
57
I, therefore, humbly request you
to give me immediately the D.A. and T.A. as
mentioned below.
Total no. of meetings 37
Daily allowance - Rs.3680/-
Travel allowance - Rs.5728/-
Thus, I may be given total D.A.
and T.A. of Rs.9408/-
Date 14.08.2007 Yours faithfully,
Sd/-
(D.M. Kamble)
Rajiv Gandhi College
Sadak Arjuni
Application for grant of D.A. and T.A.
Dated 06.10.2007
To,
The President,
Vainganga Bahu Uddehiya Vikas Sanstha,
Nagpur.
Subject: To grant daily allowance and
travel allowance with regard
to the meetings of Enquiry
Committee.
Ref'nce: 1. My letter to the Hon'ble
President,dated 14.08.2006
2. Letter of Respected lpa560.11.odt
58
Secretary bearing No.WBVS/
2007/132, dated 20.09.2007
Sir,
In response to my above referred
letter No.I, I received the above referred
letter No.2 from the Respected Secretary on
24.09.2007. I am an employee of Rajiv
Gandhi College, Sadak-Arjuni, District
Gondia. An enquiry is being held against me
by the Institution since about 3 years.
During this period, I have attended 37
meetings of the enquiry committee till this
day. In my reply dated 24.06.2004 to the
chargesheet given to me by the Institution,
I had requested to hold enquiry if at all
it was to be conducted, at the place of
headquarters i.e. at Sadak-Arjuni. However,
I did not receive any written letter
whatsoever from the Institution. Similarly,
in spite of making repeatedly the verbal
demands for D.A. and T.A. to Advocate Shri
Joshi, the representative of the
Institution, I have not been given the said
allowances.
It is true that I have repeatedly
made demand for aforesaid allowances to the
representative of the Institution.
Therefore, I am denying the allegation made
by Respected Secretary in this letter thatlpa560.11.odt
59
I am deliberately defaming the Institution.
As suggested by the Respected
Secretary in his letter, I am forwarding
herewith the details of Daily Allowances
and Travel Allowances in prescribed format.
I request you to kindly grant me the D.A.
and T.A. as per enclosed details.
Date :6.10.2007 Yours faithfully,
Sd/-
Shri D.M. Kamble
(Lecturer)
Rajiv Gandhi College,
Sadak Arjuni, District Gondia
In the case of Rajkumar Bhagat, following
are the relevant pleadings in his memo of appeal.
"VIII. That the enquiry is to be
conducted at the place of service. But, as
the enquiry officer, presenting officer and
the defence representative were from Nagpur
it was decided to hold an enquiry at Nagpur
on the condition that on the day of the
meeting of the enquiry the Management shall
pay T.A.D.A. to the appellant but, the
respondent Management did not pay it on each
and every date of the meeting of thelpa560.11.odt
60
enquiry. Not only this but during the
period of enquiry the respondent Management
did not make effort for payment of the
salary of the appellant on leaving the
regular Principal of the College. The
appellant was not paid the salary till
October 2004. It is only before issuance of
this impugned order the respondent
Management made payment of salary to the
appellant. On this reason also the order
impugned is illegal and deserves to be
quashed and set aside."
The Management filed its reply to the above
pleading thus :
17. As to ground No.
(Viii) :- The appellant has participated
in the enquiry without any objection. The
appellant has not pointed out as to what
prejudice is caused to the appellant by
holding of the enquiry at Nagpur. The
appellant has made the vague statement
that the appellant was not paid the salary
till October, 2004. The appellant has not
pointed out as to from which date the
salary was not paid to the appellant. The
appellant has not pointed out as to what
prejudice is caused to the appellant forlpa560.11.odt
61
the alleged default on the part of the
management.
18. It would be appropriate for us to refer to
the following decision of the Supreme Court on the
aspect of pleadings. In Sopan Sukhdeo Sable and ors.
vs. Assistant Charity Commissioner and others,
reported in (2004) 3 S.C.C. 137, the Supreme Court
has held thus;
"15. There cannot be any
compartmentalisation,dissection, segregation
and inversions of the language of various
paragraphs in the plaint. If such a course
is adopted it would run counter to the
cardinal canon of interpretation according
to which a pleading has to be read as a
whole to ascertain its true import. It is
not permissible to cull out a sentence or a
passage and to read it out of the context in
isolation. Although it is the substance and
not merely the form that has to be looked
into, the pleading has to be construed as it
stands without addition or subtraction or
words or change of its apparent grammatical
sense. The intention of the party concerned
is to be gathered primarily from the tenorlpa560.11.odt
62
and terms of his pleadings taken as a whole.
At the same time it should be borne in mind
that no pedantic approach should be adopted
to defeat justice on hair-splitting
technicalities.
19. Order 6 Rule 2(1) of the Code
states the basic and cardinal rule of
pleadings and declares that the pleading has
to state material facts and not the
evidence. It mandates that every pleading
shall contain, and contain only, a statement
in a concise form of the material facts on
which the party pleading relies for his
claim or defence, as the case may be, but
not the evidence by which they are to be
proved."
19. Equally, we have kept in mind the principles
set out above and from the perusal of the above
pleadings from the memo of appeal read with voluminous
documents of enquiry proceedings, to our mind, clearly
show that there are pleadings about not only the
prejudice caused to the delinquents, but also the real
danger and expression of mental set up, financial
exploitation and a complete state of despair in which
these delinquents were ensnared. What is significant
to note is that these employees started makinglpa560.11.odt
63
grievance about non-payment of salary, subsistence
allowance, T.A.D.A, change of venue of enquiry right
from the first stage and repeated the same before
Enquiry Officers. Even in the pleadings and the
documents, the same can be also found. The judgment
in the case of U.P. State Textile Corpn.
Ltd....Versus...P.C. Chaturvedi and others, reported
in 2005 (8) Supreme Court Cases 211, vide para 14 is
thus clearly distinguishable on facts, as in the facts
of the case before the Apex Court, no grievance was
made at any time during the pendency of the
proceedings but was made after completion of the
enquiry, apart from the fact vide para 6, the same was
not paid for the fault of employee. We have,
therefore, no hesitation in holding that the pleadings
in the memo of appeal are clearly enough, satisfactory
and proper, so also prejudice caused to them is
evident from the above pleadings and averments in the
documents. It will be at this stage necessary to note
the pleadings in answer by the appellants.
20. From the records and proceedings of thelpa560.11.odt
64
Tribunal, we find that reply to appeal preferred by
Rajkumar Bhagat only was filed by the Management and
not to other two appeals. Even the said reply in para
17 is not specific but evasive. In response to the
various pleadings and as stated in documents by all
these three employees about change of venue of enquiry
proceeding from Sadak-Arjuni to Nagpur, request to
bring back the enquiry at Sadak-Arjuni, grievance
about non-payment of subsistence allowance T.A.D.A.
and salary, and for legal-aid, holding of enquiry
after 8:00 p.m., no specific pleadings in rebuttal
were even raised. We are, therefore, unable to agree
with Mr. Bhangde, the learned Senior Counsel on this
aspect.
21. THE VENUE FOR HOLDING ENQUIRY :-
In criminal law, there is a general
principle that all crimes are local. Every offence
shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed.
However, there is a power of the High Court under
Section 407 of the Code of Criminal Procedure tolpa560.11.odt
65
transfer cases and appeals from one subordinate Court
to another, but that power cannot be exercised at mere
askance, but only in the circumstances enumerated in
clauses (a), (b), (c) which read thus :
Section 407 (1). Power of High Court to
transfer cases and appeals. - (1) Whenever it
is made to appear to the High Court -
(a) that a fair and impartial inquiry
or trial cannot be had in any Criminal Court
subordinate thereto, or
(b) .....
(c) that an order under this section is
required by any provision of this Code, or
will tend to the general convenience of the
parties or witnesses, or is expedient for the
ends of justice.
In the case of Mrs. Maneka Sanjay Gandhi and
another...Versus...Miss Rani Jethmalani, reported in
AIR 1979 Supreme Court 468 while rejecting the request
for transfer of criminal case from Bombay to Delhi,
the Apex Court in paragraph No.2 stated thus :lpa560.11.odt
66
"2. Assurance of a fair trial
is the first imperative of the
dispensation of justice and the central
criterion for the court to consider when
a motion for transfer is made is not the
hypersensitivity or relative convenience
of a partly or easy availability of legal
services or like mini-grievances.
Something more substantial, more
compelling, more imperilling, from the
point of view of public justice and its
attendant environment, is necessitous if
the Court is to exercise its power of
transfer. This is the cardinal principle
although the circumstances may be myriad
and vary from case to case. ...
22. Holding a domestic enquiry for certain acts
of misconduct, if not a criminal trial, is certainly
akin to a trial for proving charges. There is no
reason why the principles akin to the above should
also not apply in the matter of change or transfer in
relation to venue. In fact in order to assure a fair
trial and to comply with the principles of natural
justice, it would be appropriate to apply the said
general rule that ordinarily the charges forlpa560.11.odt
67
misconduct must be tried at a place where events or
incidents leading to the charges have taken place. We
also hold that in the absence of rule or provision
prescribing the venue or place for holding domestic
enquiry, it must ordinarily be held as indicated by us
above. The place or venue of the enquiry could be
changed only in exceptional or such circumstances
beyond the control of the Management or the enquriy
officer or even the delinquents. But then the reasons
for such a change should be known. There may be cases
where the ordinary place for holding enquiry is
unsuitable, inconvenient or becoming riotous when the
change of venue could be justified and such
circumstances may be myriad and vary from case to
case. Admittedly, in these three cases, the events
leading to charges for misconduct arose at the College
at Sadak-Arjuni, all the witnesses and in fact who
were examined by both the rival sides were from SadakArjuni or the nearby villages. The record of enquiry
proceedings in all these three cases do not show nor
it has been demonstrated before us that either the
Management or the delinquents had made any written orlpa560.11.odt
68
oral request for change of venue from Sadak-Arjuni to
Nagpur i.e. at a distance of 120 kms.. The Enquiry
Officers in all these three cases have also not
recorded any reason as to why the venue of the enquiry
was changed as such action entails civil consequences.
It appears to us that the only reason for doing so was
the convenience of the Enquiry Officers who are the
Advocates residing at Nagpur, so also the Advocates
for the parties. But mere convenience of these
Advocates could not be a reason to change the place of
venue in contravention of the above principles set out
by us above. The submission made by the learned
Counsel for the appellant in this regard about implied
consent by the employees as they also engaged
Advocates from Nagpur does not impress us. When the
enquiry was shifted to Nagpur per force, they had no
other choice but to defend themselves by engaging
Advocates from Nagpur. And that would not wipe out the
basic illegality committed in shifting the venue to
Nagpur which must be held to have vitiated the
proceedings. lpa560.11.odt
69
23. Even assuming that the Management or the
Enquiry Officer wanted to shift the venue of enquiry
from Sadak-Arjuni to Nagpur for any reasons, or even
for good reasons, still, in our opinion, the Enquiry
Officer was under an obligation, in the first place,
to obtain consent of the delinquents in writing, and
secondly, to hear them, as well as the Management, for
deciding the terms and conditions for changing the
venue of the enquiry at a long distance of 120 kms.
such as, place for holding enquiry i.e. Nagpur,
proposed schedule required for holding enquiry at
Nagpur, transport to be provided for the delinquents
and their witnesses at the costs of the Management
from Sadak-Arjuni to Nagpur and back, or for the
expenses thereof, the accommodation at Nagpur if the
delinquents and their witnesses are required to stay
at Nagpur since enquiry in this case went even beyond
8.00 p.m. and also for their food. Not only that, the
Enquiry Officer was under further obligation to ensure
that regular salary of the delinquent-employees,
irrespective of the fact whether the grant-in-aid
salary was received or not by the Management, was paid
Read more here;http://bombayhighcourt.nic.in/data/nagjudgements/2012/CLPA1959011.pdf
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