C.V. George Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
labour and industrial - termination - rule 12 of cantonment fund servants rules, 1937 - certain charges levied against petitioner - disciplinary enquiry initiated - enquiry officer found petitioner guilty of breach of trust and dishonesty - order of removal passed - order challenged - petitioner was not charged of misconduct of breach of trust and dishonesty and had no occasion to meet that charge - no justification for enquiry officer to hold petitioner guilty of breach of trust and dishonesty - held, order of removal vitiated. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses.r.m. lodha, j.1. the petitioner, by means of this writ petition filed under article 226 of the constitution of india seeks to challenge the order of suspension dated august 1, 1975 (exhibit 'a'), the order of termination dated december 14, 1983 (exhibit 'f') and the order of appellate authority dated june 30, 1984 (exhibit 'g').2. the petitioner is said to be ex-serviceman and joined the services of kirkee cantonment board (respondent no. 2 herein) as male nurse on september 1, 1961. it appears that on july 28 & 29, 1975, his house was raided by police. the petitioner was not there and by breaking open the place of his residence, police confiscated some medicines and other articles. a criminal case was registered against him and so also he was put under suspension vide order dated august 1, 1975. later on, the charges-sheet was served upon the petitioner under rule 12 of cantonment fund servants rules, 1937 vide charge-sheet dated may 8, 1973. the petitioner was charged with three charges. alongwith the petitioner no. 2 other employees were also charge-sheeted and enquiry officer was appointed by the disciplinary authority. the enquiry officer recorded the evidence of eight witnesses produced by the employer. the petitioner who denied the charges against him by filing reply to the charge-sheet also produced various documents in support of his defence. the inquiry officer submitted a joint report on july 22, 1988 whereby as against the petitioner, charges nos. 1 and 3 were held to be not proved. as regards charge no. 2, the enquiry officer found mat the delinquent petitioner has been found guilty of breach of trust and dishonesty. on the basis of the finding given by the enquiry officer, the disciplinary authority ordered removal of petitioner from the service from the date of his suspension. the petitioner challenged the order of the disciplinary authority dated december 14, 1983 removing the petitioner from service by filing appeal before the goc-in-c. the appeal filed by the petitioner was disposed of on june 30, 1984 by the appellate authority. the appellate authority, though maintained the order of removal but ordered that order of removal shall not be effective retrospectively and would take effect from the date of the order of disciplinary authority that is from december 14, 1983. the petitioner preferred revision application before the central government and it appears that since for quite some time, the revisional authority did not dispose of the revision application, the petitioner preferred writ petition before this court which was registered as writ petition no. 1443 of 1986 for direction to the revisional authority to dispose of petitioner's revision application expeditiously. the said writ petition no. 1443 of 1986 was disposed of by this court on september 29, 1986 directing the central government to dispose of the revision application filed by the petition within eight weeks from the date of issuance of writ. the revisional authority (central government) thereafter has disposed of the revision application on december 12, 1986. though the petitioner has not annexed the said order of the revisional authority, the respondents in their counter have annexed the said order dated december 12, 1986 as exhibit 'a'. by the said order, the revisional authority maintained the order of removal of the petitioner from service but again observed that the order of removal would be effective with effect from december 14, 1983.3. as already indicated above, the petitioner is challenging the order of his suspension and the order of removal from service.4. mr. saxena, advocate appearing for the petitioner has raised twofold submission: (i) that no opportunity was given to the petitioner to cross-examine the material witness shri j.d. tanpure and thus, the entire proceedings of enquiry are vitiated; and (ii) that though the petitioner was charged for the misconduct of possessing large quantity of drugs and medicines from his house without any justification, the enquiry officer held the petitioner guilty of dishonesty and breach of trust for which the petitioner was not charged and that vitiates the order of removal.5. on the other hand, the learned counsel appearing for the respondents supported the order of removal. he submitted that so far as the first contention of the learned counsel for the petitioner was concerned, the fact is that the enquiry officer did not rely upon the evidence of shri j.d. tanpure at all and therefore, no prejudice has been caused to the petitioner for not giving him an opportunity to cross-examine shri j.d. tanpure. in response to the second submission of the learned counsel for the petitioner, the learned counsel for respondents submitted that though charge no. 2 does not use expressly 'breach of trust and dishonesty', the very fact that petitioner was found in possession of large number of medicines and drugs justifies the finding of the enquiry officer that petitioner was guilty of breach of trust and dishonesty.6. we have bestowed our consideration to the arguments advanced by the learned counsel for the parties.7. the charge-sheet served upon the petitioner comprises of three charges which read thus: 'charge no. 1: conduct highly suspicious in that on july 25, 1975 at about 8.45 p.m. you went to the stores and certain articles were handed over to you by the storekeeper shri lokhande. you had no business to attend the stores at that time as there was no emergency case. charge no. 2: when your house was raidedby the police a large quantity of drugs and medicines was attached from your house.there was no justification for possessingsuch large quantity of medicines especiallywhen such medicines can be used by expertsonly. charge no. 3: you have prepared many indents even though they were not of your ward. while doing so, in one case you have changed the figure 120 to 1200 in the ledger when you have no authority to do so. in some cases, there are over writings and erasers. your house was raided by the police and a number of drugs of different varieties found, in your house. as an employee of the cantonment board, kirkee you have no business to keep such large number of medicines in your house, especially as you and your family members are entitled to free medical treatment.' 8. the statement of allegation in respect of charge no. 2 is recorded thus:'your house was raided by the police and a number of drugs of different varieties were found in your house. as an employee of the cantonment board, kirkee you had no business to keep such large number of medicines in your house, especially as you and your family members are entitled to free medical treatment.'9. the department in support of the charges examined 8 witnesses. the delinquent denied the allegations made against him and producing large number of documents comprising of bills for purchase of certain medicines. the enquiry officer after recording the evidence, as already noted above held that charges 1 and 3 against the petitioner have not been proved. thus, the charge no. 1 against the petitioner that on july 25, 1975 at about 8.45 p.m., the petitioner went to the stores and certain articles were handed over to him by the store keeper shri likhande and that he had no business to attend the stores at that time as there was no emergency case, has not been held to be proved. similarly, charge no. 3 that petitioner prepared many indents even though they did not pertain to his ward and while doing so, in one case he changed the figure 120 to 1200 in the ledger has not been held to be proved. regarding charge no. 2 which is to hie effect that when petitioner's house was raided by police, a large quantity of drugs and medicines were attached from his house and there was no justification for possessing such large medicines especially when such medicines were used by experts only. in the enquiry report, the enquiry officer has not at all considered the evidence of shri j.d. tanpure and therefore, there is absolutely no merit in the contention of the learned counsel for the petitioner that by not giving an opportunity to the petitioner to cross-examine the said shri tanpure, the entire enquiry proceedings are vitiated. as a matter of fact, no prejudice can be said to have been caused to the petitioner by not giving him an opportunity to cross-examine shri j.d. tanpure since shri tanpure's evidence has not at all been relied upon by the enquiry officer while considering charge no. 2 against the petitioner.10. however, so far as the second contention of the learned counsel for the petitioner that though the petitioner was charged of possessing large quantity of drugs and medicines without any justification when such medicines could be used by experts only, the finding recorded by the enquiry officer holding the petitioner guilty of breach of trust and dishonesty for which petitioner was not charged and that vitiates the order of removal is concerned, has substance. we have already noted above, the charge no. 2 levelled against the petitioner which was only to the effect that at the time of raid of petitioner's house, large quantity of drugs and medicines were found without any justification for possessing the same. in response to the said charge, the petitioner set up the defence that the said medicines and drugs were purchased by him. he produced certain bills for the purchase of said medicines. the said bills pertain to the year 1966-67, 1967-68, 1970-74 and also pertains to the period 1962, 1965, 1967, 1968, 1969 and 1970. the enquiry officer though has held that the said explanation given by the delinquent is not convincing, no reason whatsoever has been assigned by the enquiry officer that why the said statement is not convincing. besides the point is that though the charge no. 2 has been held to be proved against the petitioner, the enquiry officer has further held the petitioner guilty of breach of trust and dishonesty for which the petitioner was not at all charged. the order of removal passed by the disciplinary authority would show that the order of removal has been passed since the petitioner was found guilty of breach of trust and dishonesty and not because petitioner was found in possession of large quantity of medicines and drugs without any justification. by reading charge no. 2 and the evidence which has come on record in respect of charge no. 2 by no stretch of: imagination, can it be said that petitioner was informed of the charge that he has acted in a breach of trust or with dishonesty. as a matter of fact, not only that the petitioner was not charged of the misconduct of breach of trust and dishonesty but there was no evidence worth the name on record before the enquiry officer to suggest that petitioner was guilty of breach of trust and dishonesty. it is not the case of the employer that the medicines and the drugs which were found at the residence of the petitioner in the raid belonged to the employer or department. breach of trust and dishonesty are serious misconduct and have to be specifically set up if a delinquent is to be charged with such misconduct. the contention of the learned counsel for the respondent that upon proof of charge no. 2, the necessary consequence of breach of trust and dishonesty would follow is wholly misconceived. even if it is held that charge no. 2 is proved against petitioner, no inference of breach of trust and dishonesty can be drawn. we find that this aspect vitiates the order of removal removing the petitioner from service. the petitioner raised this point also before the revisional authority in para 20 of the revision submitted before the central government. para 20 of the memo of revision reads thus:-'20. the appellant submits that the learned de-novo enquiry officer did not even bother to read the complete charge sheet and the charges levelled against the appellant. it may be seen from the original charge sheet dated may 8, 1978, that there is no charge of 'breach of trust and dishonesty' but the enquiry officer has formed a peculiar opinion and come to the erroneous conclusion that the appellant is found guilty of 'breach of trust and dishonesty', which is baseless and based on extraneous matters. this is sufficient proof to show that the enquiry officer with a biased mind came to the erroneous finding that the appellant is guilty of breach of trust and dishonesty.11. the revisional authority also does not seem to have dealt with this aspect at all.12. we are of the considered view that since the petitioner was not charged of the misconduct of breach of trust and dishonesty and petitioner had no occasion to meet that charge, there was no justification for the enquiry officer to hold the petitioner guilty of breach of trust and dishonesty and since theorder of removal has been passed on the ground that petitioner has been found guilty of breach of trust and dishonesty, that vitiates the order of removal.13. consequently, writ petition is allowed. the order updated december 14, 1983 (exhibit 'f') passed by respondent no.2, the order dated june 30, 1984 passed by chief officer, commanding in chief (exhibit 'g') and the order dated december 12, 1986 passed by the central government in revisionapplication are quashed and set aside with all consequential benefits. no order as to costs.