Judgment:
R.C. Chavan, J.
1. By this petition, management of a College seeks quashing and setting aside of the judgment dated 19/2/1999 delivered by the Presiding Officer, College Tribunal, Nagpur for Nagpur and Amravati Universities allowing respondent No. 1's appeal No. A-5/96, setting aside demotion of respondent No. 1 from the post of Principal of a College to the post of an Assistant Professor in the same College.
2. It is not in dispute that respondent No. 1 was appointed as Principal w.e.f. 17/5/1985 in the College run by petitioner, after he was selected by a duly constituted selection committee, initially temporarily on a trial basis, then on probation and later on as in-charge Principal and again on probation. On 23/9/1987 he was given a three months notice of termination. He filed a writ petition bearing No. 2380 of 1987 in which stay was granted and College Tribunal at Aurangabad was directed to hear his appeal. By judgment dated 17/7/1989, College Tribunal held in favour of respondent No. 1. However, on the same day, President of the Society ordered stoppage of respondent No. 1's salary and he was placed under suspension on 1/1/1990. On 6/6/1990 a charge sheet was served. Enquiry was held and was completed on 2/7/1993. On 4/11/1995 a final show cause notice was issued and respondent No. 1 was reduced in rank by order dated 12/3/1996. Respondent No. 1 challenged the said order before the College Tribunal which set aside the same by the impugned judgment.
3. On 28/6/1999 while admitting the petition and granting stay, it was recorded that petitioner stated that respondent No. 1 could report for duties as Assistant Professor and would be paid salary as per rules. On 13/12/1999 the stay was made conditional upon petitioner's depositing 50% of the dues. On 02/10/2000 a sum of Rs. 2,03,033/- was deposited by cheque, which was ordered to be invested. By order dated 31/3/2001 respondent No. 1 was allowed to withdraw Rs. 1,25,000/- and balance was redeposited.
4. When the petition was filed, respondent No. 1 was shown to be 58 years old and has attained superannuation in the meantime. He did not join duties as Assistant Professor though he could have done so in view of order dated 28/6/1999. So, now there is no question of respondent being actually reinstated as Principal of petitioner's college.
5. According to petitioner, respondent No. 1 was charge sheeted on serious charges of misappropriation, mismanagement, forgery, disobedience of orders of the President of Society, and several other irregularities, which were duly proved at the enquiry. It was contended that the order of College Tribunal is erroneous and suffers from perversity as it does not consider the evidence tendered to prove charges.
6. According to respondent No. 1, the Tribunal had correctly analysed evidence and therefore order of the Tribunal must be upheld.
7. I have heard both the learned Counsel for petitioner and respondent No. 1 and have considered the submissions/notes tendered on record by them.
8. The learned Counsel for the petitioners submitted that the Tribunal has virtually re-appreciated evidence and has thus acted beyond the scope of its power. For this purpose, he relied on a judgment of Supreme Court in Narinder Mohan v. United India Insurance Co. Ltd. reported at : (2006)IILLJ806SC , where the Apex Court was considering the scope of power of judicial review in petitions under Article 226 of the Constitution directed against orders passed by employers against employees in disciplinary proceedings. While setting aside orders passed by a single Judge as well as Division Bench of High Court, the Apex Court impressed upon the need for a writ court to bear in mind the distinction between some evidence or no evidence and to consider whether some evidence adduced would lead to the conclusion as regards the guilt of delinquent officer. The enquiry officer cannot base his findings on mere hypothesis and mere ipse dixit on his part cannot be a substitute for evidence. The Apex Court allowed the employee's appeal, ordering his reinstatement.
9. The learned Counsel for the respondent No. 1 submitted that the Tribunal has in fact followed only the above parameters while examining evidence considered by the disciplinary authority. He submitted that considering the fact that a statutorily established Tribunal headed by a retired Judge of this Court has already applied its mind to the factual question as to whether there was evidence to prove the charges levelled, it would not be necessary for this Court to undertake evaluation of evidence once more. He also relied on some judgments to demonstrate the relative scope of scrutiny by a College Tribunal and this Court while considering a challenge to appellate order of the Tribunal under Articles 226/227 of the Constitution. It is not necessary to refer to those judgments since principles enunciated are well entrenched. With the help of both the learned Counsel, I have gone through the record of enquiry which was considered by the Tribunal. Though the learned Counsel for the petitioners submitted that the findings of the Tribunal exhibit 'grave perversity', it does not appear to be so. As rightly held by the Tribunal, as regards amounts allegedly misappropriated, they have been accounted for. As regards other charges, it seems that the root cause lay in a conflict in the management. Respondent No. 1, who possibly followed the course demanded by a Vice President, fell from grace of the President. Therefore, it cannot be said that the Tribunal erred in holding that charges against respondent No. 1 were not proved.
10. In any case, the learned Counsel for respondent No. 1 submitted that having been appointed by nomination, the respondent could not have been reverted, even if charges had been proved. For this purpose, he drew my attention to judgments of Supreme Court in Hussain Sasansaheb Kaladgi v. State of Maharashtra reported at : (1987)IILLJ506SC ; Nyadar Singh v. Union of India and Ors. reported at : (1988)IILLJ506SC and judgment of this Court in Sheshrao Daulatrao Raut v. State of Maharashtra and Ors. reported at 1989 Mh.L.J. 476. In view of this, first, because the Tribunal rightly held the charges as not proved and secondly, as respondent No. 1 could not have been reverted, the Tribunal rightly set aside respondent No. 1's reversion.
11. The learned Counsel for the petitioners submitted that even so, the Tribunal could not have ordered payment of salary for the entire period during which respondent No. 1 did not work and for this purpose relied on judgments of the Supreme Court in J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. reported at : (2007)IILLJ128SC ; State of Maharashtra and Ors. v. Reshma Ramesh Meher and Anr. reported at : (2009)ILLJ553SC and Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma reported at : (2005)IILLJ153SC . The principle, that an employee would have to prove that he was not gainfully employed in the period during which he was kept out of employment, before being able to lay claim to full back wages, is well established in labour and service jurisprudence. However, the learned Counsel for respondent No. 1 submitted that denial of full or partial back wages ought to come only as substitution of punishment imposed, if the guilt of employee is proved. He submitted that once termination is found to be illegal, order of back wages must follow, unless a departure is justified by circumstances established, and for this purpose relied on judgment of the Supreme Court in Manorma Verma (Smt) v. State of Bihar and Ors. reported at . And according to him, there are no such circumstances warranting denial of back wages.
12. In this case, while admitting the petition, the order of the Tribunal was stayed, granting to respondent No. 1, the liberty to join duties as Assistant Professor. The learned Counsel for respondent No. 1 submitted that stay does not wipe out the order of the Tribunal and upon vacation of stay at the end of the hearing a successful party can demand restitution for what had been lost. For this purpose, he relied on judgments of Supreme Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association CSI Cinod Secretariat, Madras reported at : [1992]2SCR999 and Karnataka Rare Eartyh and Anr. v. Senior Geologist; Department of Mines and Geology and Anr. v. Senior Geologist, Department of Mines and Geology and Anr. reported at : (2004)2SCC783 . Therefore, according to the learned Counsel for respondent No. 1, in spite of interim order dated 28-6-1999, his client would be entitled to full salary and allowances for the entire period, since he was reverted.
13. There can be no doubt that a person would be entitled to what he had lost due to a wrong order. What respondent No. 1 could be said to have lost due to his wrongful reversion is the difference in his emoluments as Principal to which he was entitled, and as Assistant Professor, the post to which he was reverted by the Management. The contention of the learned Counsel for respondent No. 1 that since reversion was unjust and has been so held, his client was entitled to keep himself away and, therefore, could claim full emoluments for the post of principal has to be rejected for two reasons. First, on the principle that full back wages could be granted only on showing lack of gainful employment would imply establishing lack of even an opportunity of such employment. In this case employment was not only available, but also indicated by this Court in order dated 28-6-1999, which respondent No. 1 did not avail of. Secondly, the petitioner-Management could not be presumed to have been disentitled to even initiate disciplinary proceedings against respondent No. 1. That in the end, the action was held to be wrong should entail exposure of the Management to the need to cover the risk it had taken. Had the petitioners dismissed respondent No. 1, then may be, upon such dismissal being found erroneous, respondent No. 1 could have claimed full emoluments. The petitioners had given opportunity to respondent No. 1 to serve as Assistant Professor. He could have kept his ego aside and accepted the position under protest, while challenging the action before the Tribunal. Hence, the petitioners would be liable to pay only the difference in the salary of Principal (to which respondent No. 1 was entitled) and that of Assistant Professor (a post which was offered to respondent No. 1 which he did not join).
14. 'Salary' would obviously mean salary which the petitioners were obliged to pay under applicable terms of employment and not necessarily at scales prescribed by State/university authorities, unless made applicable to the petitioner's College by appropriate Government directives.
15. In view of this, the petition is partly allowed. The impugned order, insofar as it directs payment of arrears of salary from the date of demotion, is set aside and substituted by the following:
16. Respondent No. 1 would be paid the difference of salary to which he would be entitled but for his demotion, and the salary which he would have been entitled to receive upon his demotion, from the date of his demotion till the date on which he would have ordinarily retired on superannuation. Respondent No. 1 has already received certain amounts deposited by the petitioners in terms of interim orders by this Court. If the amounts so received do not exceed the amounts due by a sum less than Rs. 25,000/- the same shall not be recovered, considering the expenses that respondent No. 1 must have incurred in fighting against his wrongful demotion.