Waheed Akhtar Ansari Vs. the President, Khairul Islam Higher Education Society's Maharashtra College of Arts and Commerce and Ors. (16.09.2008 - BOMHC) - Court Judgment

Excerpt:
service - termination - article 226 of constitution of india - petitioner appointed in junior college - lady lecturer complained of sexual harassment by petitioner - petitioner terminated - termination challenged before grievance committee by filing appeal - appeal dismissed - petition under article 226 filed - court observed that allegation of misconduct not established - management to convene disciplinary proceeding for purpose of enquiry - termination order set aside to facilitate a fresh determination - management conducted disciplinary enquiry and enquiry officer submitted his report - petitioner instituted writ petition during pendency of proceedings for direction to management to forward complaint made by lady lecturer to grievance committee - held, proceeding be remitted to grievance committee for afresh decision - liberty to be given for cross examination - petitioner remain suspended pending proceeding - committee shall determine arrears and allowance during suspension. - 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. - the grievance is that the committee has not decided upon the complaint dated 16th january, 2003. since the grievance committee has failed to do so, the complaint must be treated as having come to an end and the committee would have no right or jurisdiction to entertain any proceeding hereafter; the management, it was urged, ought to have reported the allegation of misconduct to the grievance committee which it failed to do:d.y. chandrachud, j.1. rule, made returnable forthwith. counsel appearing for the respondents waive service. by consent of the learned counsel, taken up for hearing and final disposal.2. on 22nd august, 2002 the petitioner was appointed as a shikshan sevak in a junior college conducted by the first and second respondents for a term of three years. a complaint was addressed on 16th january, 2003 to the management by a lady lecturer complaining of sexual harassment by the petitioner. an explanation was called for by the management from the petitioner on 18th january, 2003 and his services were terminated on 31st january, 2003. according to the petitioner, between the receipt of the complaint and the letter of termination certain events transpired. the allegation of the petitioner is that on 22nd january, 2003 he was called to the police station at nagpada; he was assaulted there and he was compelled to sign an in culpatory statement. thereafter, the petitioner alleges that on 25th january, 2003 he was summoned to the office of the principal where a statement accepting of guilt was dictated by the principal and corrected by a trustee. the petitioner claims that on 28th january, 2003 he submitted a fair copy of the explanation to the principal. a letter of termination followed on 31st january, 2003.3. the petitioner challenged the order of termination before the grievance committee set up in pursuance of a government resolution dated 13th october, 2000 issued by the state government to regulate the terms of appointment and conditions of service of shikshan sevak. the appeal was dismissed by the grievance committee on 8th april, 2004. the order of the grievance committee was challenged by the petitioner in a writ petition under article 226 of the constitution (writ petition no. 1680 of 2004). the writ petition was disposed of by a single judge of this court on 2nd july, 2004. this court inter alia noted that the case of the petitioner was that the apology which he had been called upon to tender by the principal was not voluntary. the court observed that the grievance committee had not considered as to whether the allegation of misconduct was established. consequently the petition was disposed of with a direction that the management would be at liberty to convene a disciplinary proceeding for the purpose of enquiring into the charge of misconduct against the petitioner pending which the petitioner could be placed under suspension. the order of the grievance committee and the order of termination were both set aside in order to facilitate a fresh determination.4. pursuant to the order passed by this court the management conducted a disciplinary enquiry and on 1st september, 2005 the enquiry officer submitted his report. the petitioner had instituted a writ petition before this court (writ petition 6203 of 2005), during the pendency of the disciplinary proceedings for setting aside a roznama dated 8th august, 2005 under which evidence was recorded in the disciplinary proceedings and for a direction to the management to forward the complaint made by the lady lecturer on 16th january, 2003 to the grievance committee as required by the government resolution dated 13th october, 2000. the petitioner also made a prayer in regard to the payment of subsistence allowance. the petition came up for hearing before a division bench and on 28th september, 2005 the division bench made rule absolute in terms of prayer clause (a) by setting aside the roznama of the enquiry dated 8th august, 2005. the division bench observed that it was only the grievance committee which could go into the issue of misconduct. the management was directed to refer the complaint in respect of which the charge-sheet was issued to the committee for its consideration. the operative directions of the division bench were as follows:in so far as the enquiry is concerned, the petition will have to be allowed in as much as it is only the committee as set out earlier which is the committee which can also go into the issue of misconduct. in the light of that petition made absolute in so far as prayer clause (a) is concerned. we further direct the management to refer the complaint in respect of which charge sheet was issued to the committee for their consideration. it will be open to the petitioner to contend before the committee that what can be considered is only the complaint based upon which his services were terminated. all these issues are left open to be considered by the committee.5. thereupon the grievance committee heard the parties and delivered its impugned order dated 16th june, 2007 holding that the services of the petitioner were correctly terminated. the grievance committee came to the conclusion that it was entitled to rely upon the enquiry report submitted by the management. the order of the committee shows that the report of the enquiry forms the basis and foundation of the order.6. counsel appearing for the petitioner has urged that (i) by the judgment of the division bench dated 28th september, 2005 the management was required to refer the complaint in respect of which the charge-sheet was issued to the grievance committee. the grievance is that the committee has not decided upon the complaint dated 16th january, 2003. since the grievance committee has failed to do so, the complaint must be treated as having come to an end and the committee would have no right or jurisdiction to entertain any proceeding hereafter; (ii) the charge of sexual harassment has been made malafide and it is only a ruse to throw the petitioner out of employment. though the petitioner had applied for the job of a shikshan sevak pursuant to an advertisement, he was initially not given an interview call and it was only on his intervention that a letter was issued to him on 22nd august, 2002. the management was actuated with a desire to oust the petitioner. the management, it was urged, ought to have reported the allegation of misconduct to the grievance committee which it failed to do: as a result the order of the grievance committee should be quashed and set aside and the petitioner should be granted reinstatement with consequential benefits.7. by the judgment and order that was passed by the division bench of this court on 28th september, 2005 this court formed the view that it was only the grievance committee which was set up in pursuance of the government resolution (noted above) which could go into the issue of misconduct. the management was directed to refer the complaint in respect of which the charge sheet was issued to the committee. this court made the rule absolute in terms of prayer clause (a), consequent upon which the entire proceedings at exhibit m to the earlier writ petition were quashed and set aside. the grievance committee, upon the judgment of the division bench, was required to consider as to whether there was any substance in the charge of misconduct which was founded on the complaint of sexual harassment made on 16th january, 2003 against the petitioner.the grievance committee has founded its entire judgment only on the basis of the report of the enquiry conducted by the management. there is merit in the submission which has been urged on behalf of the petitioner that under the government resolution dated 13th october, 2000 as construed by the judgment of the division bench of this court dated 28th september, 2005, the grievance committee was required to consider the complaint of misconduct and to determine whether the misconduct stood established. that exercise has not been carried out by the grievance committee. to that extent, there is merit in the grievance of counsel appearing for the petitioner.8. it would be necessary to observe at this stage that during the course of the hearing of these proceedings, counsel appearing on behalf of the management (the first and second respondents) has fairly accepted this position and has submitted before the court that an order of remand may be passed, with a view to enabling the management to establish the misconduct by leading evidence before the grievance committee.9. counsel appearing for the petitioner has urged that no purpose would be served in an order of remand, the grievance committee having already held against the petitioner and it was submitted that the petitioner is entitled to reinstatement with consequential benefits. on behalf of the petitioner it was also sought to be urged that the petitioner has been absolved of the charge of misconduct. this submission is without any basis and cannot be accepted. on 2nd july, 2004, when this court disposed of writ petition 1680 of 2004 it was made clear that the court was not rendering any determination on the allegation of misconduct. the issue of misconduct was thus kept open. in the subsequent judgment of the division bench dated 28th september, 2005 similarly it has been clarified that all issues are left open to be considered by the grievance committee. there was no adjudication by this court at any stage on whether or not the charge of misconduct stood established. by the judgment dated 28th september, 2005 the division bench allowed the petition filed by the petitioner herein only on the ground that the allegation of misconduct could have been enquired into by the grievance committee alone. an order of remand was necessitated on that count. the infirmity which has been found in the order of the grievance committee in the present proceedings is that the committee has not independently considered whether there was any substance in the complaint of sexual harassment made against the petitioner. the committee was not entitled to rely upon the report of the enquiry conducted by the management once the division bench had held that the issue of misconduct was one which could only be considered by the committee. that being the position, it would be impermissible to accept the plea of the petitioner for the grant of reinstatement at this stage. there is a serious charge of misconduct against the petitioner. the infirmity which has been found in the disciplinary proceedings can be cured by directing the grievance committee to adjudicate upon the correctness of the charge of sexual harassment made against the petitioner on the basis of the complaint lodged on 16th january, 2007. pending this determination, there is no question of the petitioner being reinstated either with or without consequential benefits. it is now a settled principle of law that where a defect is found in a disciplinary proceeding convened by an employer into an allegation of misconduct, it would not be permissible to grant reinstatement straightaway and the appropriate order to pass would be to permit the management to have an opportunity to establish the charge of misconduct from the stage at which the defect had occurred. the question of mala fides again is a question of fact. the petitioner has accepted the earlier order of the division bench which has attained finality. hence, all questions will have to be left open for adjudication by the grievance committee on remand.10. in the circumstances, the petition shall stand disposed of with the following directions:i) the order of the grievance committee dated 16th june, 2007 (exhibit d) is quashed and set aside and the proceedings shall stand remitted back to the grievance committee for a decision afresh in accordance with the judgment of the division bench dated 28th september, 2005 in writ petition 6203 of 2005;ii) the first and second respondents would be at liberty to lead evidence in support of the charge of misconduct before the grievance committee. the petitioner would be at liberty to cross examine the witnesses produced by the management. the petitioner would also be at liberty to lead such evidence as he desires in defence to the charge of misconduct;iii) both the parties shall appear before the grievance committee for receiving directions on 23rd september, 2008. the committee is requested to expedite the disposal of the proceedings and to endeavour to do so by 31st december, 2008;iv) the petitioner shall continue to remain suspended pending the disposal of the proceedings before the grievance committee. the grievance committee shall inter alia determine as to whether the charge of misconduct, based on the complaint of sexual harassment made on 16th january, 2003 has been duly established. the grievance committee shall also determine as to whether the petitioner is entitled to arrears on account of honorarium and/or subsistence allowance during the period of suspension.11. rule is made absolute in the aforesaid terms. there shall, in the circumstances, be no order as to costs.