Major B.G. Vishwas Vs. President and Correspondent, Sri Bala Siva Yogendra Maharaj Degree College and anr. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer.....orderl. narasimha reddy, j.1. the petitioner was appointed as principal of sri bala siva yogendra maharaj degree college, kasibugga, srikakulam district, the first respondent. the institution was admitted to grant-in-aid. disciplinary proceedings were initiated against the petitioner, by issuing a charge-sheet, dated 20-6-2005. he was placed under suspension on 23-4-2005. the management of the college appointed a retired district judge as an enquiry officer, through orders, dated 18-5-2005.2. the regional joint director of higher education, rajahmundry, passed orders, dated 15-7-2005, directing reinstatement of the petitioner on the ground that the period of two months stipulated in section 79 of the andhra pradesh education act, expired.3. the enquiry officer submitted his report holding.....

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner was appointed as Principal of Sri Bala Siva Yogendra Maharaj Degree College, Kasibugga, Srikakulam District, the first respondent. The institution was admitted to grant-in-aid. Disciplinary proceedings were initiated against the petitioner, by issuing a charge-sheet, dated 20-6-2005. He was placed under suspension on 23-4-2005. The management of the College appointed a retired District Judge as an Enquiry Officer, through orders, dated 18-5-2005.

2. The Regional Joint Director of Higher Education, Rajahmundry, passed orders, dated 15-7-2005, directing reinstatement of the petitioner on the ground that the period of two months stipulated in Section 79 of the Andhra Pradesh Education Act, expired.

3. The Enquiry Officer submitted his report holding that the charges levelled against the petitioner, are proved and the management issued a show-cause notice, dated 28-9-2005, directing the petitioner to show-cause as to why he shall not be removed from service. The petitioner filed WP No. 20367 of 2005 challenging the appointment of the Enquiry Officer on the ground that he is not an Officer, superior in rank to him, as mentioned in Rule 7(2) of the Andhra Pradesh Private Institutions Employees (Discipline and Control) Rules, 1983, (for short 'the Rules'). He also filed WP No. 21802 of 2005 challenging the show-cause notice, dated 28-9-2005.

4. The writ petitions were disposed of, through an order, dated 7-10-2005, holding that the appointment of a retired District Judge as an Enquiry Officer, in the matter, is contrary to the relevant rules and it was directed that the management shall appoint another Enquiry Officer in accordance with the rules, and proceed with the enquiry. The show-cause notice, dated 28-9-2005, was set aside. The petitioner was directed to be paid full salary, in lieu of reinstatement. W.A.No. 2227 of 2005 filed by the petitioner is said to have been dismissed on 21-11-2005.

5. Through its letter, dated 3-11-2005, the management of the College appointed one Sri R. Anand Rao, a retired Principal and a Member of the Governing Body, as an Enquiry Officer. The newly appointed Enquiry Officer issued a notice, dated 27-11-2005, to the petitioner, requiring him to appear in the proceedings. WP No. 25765 of 2005 is filed challenging the appointment of the present Enquiry Officer.

6. The petitioner has also filed WP No. 325 of 2006 seeking a direction that he be permitted to join duty as Principal, in view of the recent developments.

7. Sri M. Kesava Rao, learned Counsel for the petitioner, submits that the appointment of a Member of Governing Body, a retired Principal of Government Degree College, is contrary to Rule 7(2) of the Rules, inasmuch as he cannot be treated as superior in rank, to the petitioner. He contends that being part of the Management, the Enquiry Officer would, naturally, be biased against the petitioner. He further contends that the Enquiry Officer did not accede to the request of the petitioner, to permit him to cross-examine the witnesses. The learned Counsel farther points out that the Enquiry Officer is a stranger to the administration of the institution, and as such, he cannot be permitted to proceed with the enquiry.

8. Learned Counsel for the petitioner further points out that this Court directed that the petitioner be paid full salary, though the order of suspension has become inoperative, by stipulating time for completion of enquiry and since the time had expired, the petitioner is entitled to function as Principal.

9. Sri P. Gangaiah Naidu, learned Senior Counsel appearing for the management of the College, on the other hand, submits that being a Principal of the Governing Body as well as a retired Principal of a Government College, the Enquiry Officer cannot be said to be disqualified in any manner. He further contends that the delay in concluding the disciplinary proceedings against the petitioner, was on account of non-co-operation of the petitioner and as such, he cannot be permitted to join duty, particularly, when he is being paid full salary.

10. The purport of Rule 7(2) of the Rues has already been dealt with by this Court in the common order passed in WP Nos. 21802 and 20367 of 2005. The judgment of this Court in Vivek Vardhini Education Society, Hyderabad v. State of Andhra Pradesh : 2002(1)ALD323 , was followed. The person, who was appointed as Enquiry Officer on the earlier occasion, was a retired Judge and has nothing to do with the department of Education or the Management of the Institution. In contrast, the Enquiry Officer, who is now appointed by the management, is a retired Principal a Government College, apart from being a Member of the Governing Body of the College. The relevant part of Rule 7(2) of the Rules, reads as under :

If an oral enquiry is desired by the person charged, the Management shall appoint an inquiring authority who shall be superior in rank to the charged person, to conduct the enquiry....

11. The expression 'superior in rank to the charged person' in the context of a private institution, particularly, where the Officer facing an enquiry is the Head of Institution, needs to be understood in a wider perspective. A strict and grammatical interpretation of this expression may lead to a situation that there cannot be any Enquiry Officer against the Principal of an Institution. On the other hand, if the spirit of that expression is to be taken into account, it must be understood as the one requiring that the Enquiry Officer should be the one, whose status in the institution is superior to the delinquent official. Viewed from that angle, it emerges that the Enquiry Officer is not only the retired Principal of a Government Degree College, but is also a Member of the Governing Body. He cannot be said to be either an outsider or the one, inferior in the rank, to the petitioner. To a considerable extent, the doctrine of necessity also gets attracted in such cases. Therefore, this Court does not find any basis to accept the contention of the petitioner that the appointment of the present Enquiry Officer is contrary to Rule 7(2) of the Rules.

12. The allegation of the petitioner as to the bias on the ground that the Enquiry Officer is a part of management of the College, cannot be accepted. In fact, in every and any enquiry, it is an Officer from that department that has to act not only as an Enquiry Officer, but also as a disciplinary authority. Mere fact that the Enquiry Officer is a part of the management or administration, does not by itself, bring about bias.

13. Another limb of this very contention is that the Enquiry Officer has refused to permit the petitioner to cross-examine the witness examined on behalf of the management. Learned Counsel for the petitioner has placed before this Court, an endorsement, dated 21-12-2005, made by the Enquiry Officer. The procedure adopted by the Enquiry Officer in this regard cannot be countenanced. The petitioner has every right to cross-examine the witness that were examined by the Management. The refusal of permission to cross-examine the witnesses, appears to be on account of lack of experience on the part of the Enquiry Officer. Therefore, necessary directions need be issued in this regard.

14. As regards the claim of the petitioner to join duty as Principal, this Court is of the view that his interest has already been protected by directing the Management to pay full salary and granting permission to join duty, at this stage would lead to several complications.

15. For the foregoing reasons, both the writ petitions are disposed of,

(a) holding that the appointment of the second respondent in WP No. 25765 of 2005 is valid;

(b) directing that the Enquiry Officer shall give an opportunity to the petitioner to submit his case and to cross-examine the witnesses examined on behalf of the management, and

(c) that the Enquiry Proceedings shall be completed, within a period of one month from today and the right of the petitioner to join duty will depend on the outcome of the enquiry.

16. There shall be no order as to costs.