V.M. Kanade, J.@mdashBy this appeal, the Appellant is challenging the judgment and order passed by the learned Single Judge dated 17/01/2012 whereby the learned Single Judge summarily dismissed the Writ Petition and confirmed the order of the Presiding Officer, College Tribunal who had dismissed the appeal filed by the Appellant herein challenging her removal from service by order dated 21/05/2009 passed by the Management. For the sake of convenience, the Appellant shall be refereed to as "Petitioner" and the Respondents shall be referred to as "Respondents". The services of the Petitioner were terminated pursuant to the order of dismissal passed by the Management dated 21/05/2009 which accepted the report of the Inquiry Officer dated 23/03/2009 and dated 30/3/2009.
2. The grievance of the Petitioner in a nutshell is that in-charge Principal of the College one Mr. A.K. Inamdar and Mr. V.B. Tiwari who was also working as Professor in the said College felt threatened after the Petitioner passed her NET/SET examination and anticipated that soon thereafter the Petitioner would be eligible to be appointed as Principal of the College and, as a result, Mr. Inamdar would not be confirmed as Principal and, secondly, there were past disputes and differences between Mr. A.K. Inamdar and V.B. Tiwari on the one hand and the Petitioner on the other hand as a writ of which they several false and bogus criminal complaints as well as complaints in the University against the Petitioner and, as a result of the said animosity, had initiated inquiry against her. The second grievance of the Petitioner is that the Inquiry Officer committed breach of principles of natural justice and without giving proper opportunity to the Petitioner filed adverse reports against her. It is also her case that he was biased and he had already prejudged the issue which was pending before him and, thirdly, it is contended that without production of the alleged bogus and fabricated B.A. Decree Certificate, the Inquiry Officer came to the conclusion that the said Certificate was bogus only on the basis of the letter which was purportedly written by Registrar of Kakatia University and later on it transpired that such a letter was never received by the police or any other authority and on the basis of such letter which was not duly proved, the Inquiry Officer had given adverse reports. Lastly, it is submitted that the Inquiry Officer submitted the report on 23/03/2009 and the Notice of Motion filed by the Petitioner came up before the Division Bench of this Court on 24/03/2009 on which date, Division Bench of this Court gave direction to the Inquiry Officer to permit the Petitioner to cross-examine the two witnesses and thereafter to consider the cross-examination and submit report. The grievance of the Petitioner is that though the report was already tendered by the Inquiry Officer on 23/03/2009, this fact was not brought to the notice of the Division Bench of this Court and secondly when this fact was informed to the Inquiry Officer he did not give any further time to the Petitioner to cross-examine the two witnesses and completed the formality of permitting her to cross-examine the witnesses on 30/03/2009 and, on the same day, informed the Management that he would not like to change the report dated 23/3/2009 by ignoring the cross-examination. In this background, it will be necessary to briefly take into consideration brief facts which are relevant for the purpose of deciding this appeal.
3 As pointed out earlier, there is a chequered history of disputes between the Petitioner on the one hand and the Acting/in-charge Principal Mr. A.K. Inamdar and Mr. V.B. Tiwari on the other hand and, for this purpose, it is necessary to give brief chronology of events.
Chronology of events:
(1) The Petitioner appeared for her B.A. Examination in 1988 from Kakatia University by attending Progressive Classes, Thane (West).
(2) The Petitioner submitted the original B.A. Degree Certificate to the College. However, it is alleged that the said original Certificate is lost and even copy thereof is not available. According to the Petitioner, in the letter written by the her to the Assistant Commissioner of Police, Azad Maidan Police stted dated 26/07/2007, she has stated that she had joined Progressive Classes, Thane (West) and attempts made by her to get the duplicate copy or number enrollment number failed and she came to know that the Classes were closed since the Proprietor/owner of the said Classes Mr. Ganesh Kamlakar Naik committed fraud on many students and cheated them and hence he was arrested in 1990. However, later on, he died in the same year.
(3) The Petitioner then joined LL.B. Course and completed the said three years LL.B. Course and secured 62% marks and stood first from Siddharth Law College.
(4) The Petition then in November, 2000 made an application to the People''s Education Society with her bio-data for the post of Teacher on clock hour basis and on 01/01/2001, she was appointed as "Fellow" as per the tradition of People''s Education Society.
(5) The Petitioner then jointed LL.M. Course and received scholarship from Mumbai University as she had obtained 366 marks out of 600 and stood 7th in the merit list for LL.B. Examination from the scheduled caste category.
(6) On 04/04/2001, the Petitioner was awarded ''Bharat Ratna Dr. Babasaheb Ambedkar Birth Centry Award 2000'' for securing highest marks in the law from the scheduled caste category.
(7) In 2002, the Petitioner passed LL.M with 57% marks from the Mumbai University.
(8) The Petitioner was to appear for interview which was to be held by the Management on 12/10/2012.
(9) The said Mr. V.B. Tiwari sent a letter to the said Mr. A.K. Inamdar, stating therein that excess marks were given in the LL.M paper of the Petitioner. This letter was sent one day before the said interview. In spite of this, on 12/10/2012, the Petitioner was selected by the Selection Committee.
(10) In 2003, the Petitioner appeared for NET/SET examination and cleared the said examination.
(11) On 24/8/2004, services of the Petitioner were terminated without issuing show-cause notice and without giving hearing by the Management on the ground that they did not want full time lecturer.
(12) The order of her termination by the Management was challenged by the Petitioner by filing an appeal before the University Tribunal being Appeal No. 21 of 2004. Application for intervention filed by the said Mr. V.B. Tiwari was rejected. Appeal of the Petitioner was allowed and direction was given to the Management of Siddharth College of Law to reinstate the Petitioner with backwages and direction was also given to pay costs to the Petitioner.
(13) On account of various complaints which were filed against the Petitioner, on 2/1/2007 Mr. Jayant Dighe, Registrar of Mumbai University issued a letter to the Member Secretary and Chairman of People''s Education Society to conduct an inquiry under Statute 439B(1) against the Petitioner. Mr. A.B.M. Shaikh, retired City Civil Court Judge was appointed as Inquiry Officer. He, however, resigned in May, 2007.
(14) Direction was given by this Court in Writ Petition No. 1209 of 2007 to complete the inquiry within a time bound schedule.
(15) The Management appointed Mr. B.S. Govekar, retired Sessions Judge as Inquiry Officer and P.K. Sawant as presenting Officer to conduct the inquiry. The inquiry against the Petitioner commenced and the statement of Mr. A.K. Inamdar and Assistant Registrar Prakash Gosavi was recorded. Time was sought and request was made that the matter may be kept in the evening since there were number of court cases pending in Court against the Petitioner. This request was denied and the matter was adjourned to 18/03/2009.
(16) The Petitioner filed Notice of Motion No. 175 of 2009 in Writ Petition No. 1209 of 2007 seeking permission to cross-examine the management witnesses and also made a request that the Inquiry Officer may be changed on the ground of prejudice, unfairness and bias of the Inquiry Officer.
(17) Notice of Motion taken filed by the Petitioner did not reach on 20/03/2009. The Inquiry Officer, however, closed the inquiry on that day even though he was aware that Notice of Motion of the Petitioner was coming up for hearing on 24/03/2009.
(18) On 23/03/2009, Inquiry Officer proceeded to pass orders even before the order could be passed in the Notice of Motion filed by the Petitioner and held that the charges were proved under Statute 439B(1) and recommended to the Management that services of the Petitioner should be terminated and she should be removed from services.
(19) On 24/03/2009, Notice of Motion came up for hearing before Division Bench. The Management did not inform the Court that the Inquiry Officer had tendered a negative and adverse report against the Petitioner and suppressed this fact from the Court. The Court was pleased to permit the Petitioner to cross-examine the Management witnesses and allowed the Notice of Motion.
(20) On 27/03/2009, the Management sent letter at 10.00 P.M. informing the Petitioner that the Petitioner should cross-examine the Management witnesses on 30/03/2009 which was a last date of inquiry as per the directions given by the Court on earlier occasion directing that the inquiry should be completed on that date. Petitioner, therefore, had no other option but to cross-examine the Management witness Mr. A.K. Inamdar.
(21) The Inquiry Officer sent a letter to the Chairman of the Peoples Education Society in which he observed that there was no need to change his view even after cross-examination of the two witnesses by the Petitioner. No reasons were given by the Inquiry Officer.
(22) The Management accepted the recommendation of the Inquiry Officer and terminated the services of the Petitioner.
(23) The Petitioner, thereafter, filed appeal before the College Tribunal which was dismissed. Writ Petition filed by the Petitioner under Article 226 was also dismissed.
SUBMISSIONS:
4. The Petitioner who is appearing in person, briefly, has made the following submissions:-
5. It is submitted that the learned Single Judge and the Presiding Officer erred in appreciating the fact that the Inquiry Officer had not given reasonable opportunity to the Petitioner to cross-examine the Management witnesses and further no opportunity was given to her to adduce the evidence of her witnesses and, as a result of which the whole inquiry itself was vitiated. Secondly, it is urged that even though the Notice of Motion which was taken out by the Petitioner seeking permission to cross-examine the two witnesses was pending, the Inquiry Officer closed the inquiry arbitrarily on 23/03/2009 and submitted report on 30/03/2009. The Management suppressed this fact from the Court on 24/03/2009 when a direction was given to the Inquiry Officer to permit the Petitioner to cross-examine the Management witnesses. It appears that the Inquiry Officer permitted the Petitioner to cross-examine the witnesses on 30/03/2009 and without taking into consideration the admissions given in the cross-examination by the said witnesses informed the Management by letter dated 30/3/2009 that he did not wish to review his earlier report, thus completely ignoring the cross-examination and indirectly committing breach of the order of the High Court. Thirdly, it is submitted that the learned Single Judge and the Presiding Officer failed to appreciate that B.A. Degree Certificate which was alleged to be bogus and heavily referred to and relied upon in the whole inquiry, a copy of the said B.A. Degree Certificate was neither the part of the charge-sheet nor it was submitted during the inquiry proceedings by the Respondents. It is submitted that the entire inquiry was vitiated since on the similar charge under Statute 439B(1), University had held full-fledged departmental inquiry which was conducted and completed by the University by appointing a retired High Court Judge. It is contended that though the inquiry proceedings continued for 108 weeks, the inquiry was completed in just 9 days and that too in three sittings. She further contended that the Inquiry Officer being the ex-faculty member and also being close to in-charge Principal of the College and the presenting Officer being part-time lecturer in the same College were interested in outcome of the inquiry and, therefore, ought to have been disqualified from being Inquiry Officer and Presenting Officer. It is also contended that the in-charge Principal Mr. A.K. Inamdar in collusion with Mr. V.B. Tiwari had initiated the said proceedings only in order to ensure that the Petitioner who was fully qualified to be appointed as Principal was removed from the College so that, he could be continued as Principal of the College. Our attention was also brought to the various complaints which were filed by Mr. V.B. Tiwari and Mr. A.K. Inamdar before various forums and the counter-complaints filed by the Petitioner. The Petitioner also submitted that Mr. A.K. Inamdar and Mr. V.B. Tiwari had taken help of Mr. K.L. Bishnoi who was the then Additional Commissioner of Economic Offences Wing, Mumbai to collect evidence from Kaktia University and subsequently a letter was sent from the said Wing that the alleged letter on which reliance was placed by the Management was never received by the police and it was never sent from the Kakatia University.
6. On the other hand, Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the alleged true Management submitted that the LPA was not maintainable and, therefore, on that ground appeal itself was liable to be dismissed. He then submitted that the Inquiry Officer had come to the conclusion on the basis of documents on record that the degree which was tendered by the Petitioner was forged and fabricated document and, therefore, it was not open for this Court to alter the finding of fact. It is submitted that the contention of the Petitioner that there is violation of the principles of natural justice is without any substance and both, the Tribunal as well as the learned Single Judge had dealt with this aspect at length. He further submitted that some of the points which were argued before us were never argued by the Advocate for the Petitioner before the Presiding Officer of the College Tribunal or before the learned Single Judge. It is further submitted that even in the report which was tendered by Justice P.S. Patankar, the retired Judge of this Court, he had come to the conclusion that the B.A. Degree of the Petitioner was not genuine and, therefore, the Inquiry Officer was justified in holding that charge against the Petitioner was duly established
REASONING AND CONCLUSION:
7. Perusal of the chronology of events and the spate of complaint which have been filed by Mr. V.B. Tiwari and Mr. A.K. Inamdar against the Petitioner and vice versa disclose that in-charge Principal Mr. A.K. Inamdar and Mr. V.B. Tiwari were at logger heads. Secondly, it is clear that there were two groups in the Management; one who is supporting the Petitioner and the other on whose behalf Mr. B.K. Barve is appearing is vehemently in favour of removal of the Petitioner. When the matter was placed for admission and hearing after it was assigned to this Court by the Hon''ble Chief Justice, the learned Advocate Mr. Avinash Khamkhedkar appearing on behalf of the Management submitted that Mr. More was tendering unconditional apology to the Court for the harassment caused to the Petitioner and further stated that the Management was willing to reinstate the Petitioner with full back-wages which would be paid with interest. In view of that statement, this Court directed both parties to tender consent terms so that the matter could be disposed of. However, on the next date Mr. Barve appeared and submitted that he represented the true Management and, therefore, he sought time to file his reply. The matter was, therefore, adjourned and kept on 3/12/2012. We had pointed out that the appeal would be disposed of finally at the stage of admission. On 3/12/2012, Mr. Dhakephalkar, the learned Senior Counsel appeared with Mr. Barve on behalf of Management and reiterated that they were representing the true Management.
8. From the record, it appears that there is some dispute going on between two faction of the Peoples Education Society and it appears that the said proceedings are pending. According to Mr. Avinash Khamkhedkar, it has been held that the Management which he is representing is duly elected Management whereas this fact is denied by Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the alleged true Management. In view of this controversy, we thought it fit to hear Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the alleged true Management instead of going into controversy as to who is the duly elected and legally constituted Management Committee. We would like to note here that though we have heard Mr. Dhakephalkar, the learned Senior Counsel, we have not given any finding that he is representing the true Management. It is a matter of record that in all other proceedings the so-called alleged true Management on whose behalf vakalatnama has been filed by Mr. Barve had never appeared either before the learned Single Judge or before the Presiding Officer. Be that as it may. We therefore proceed to decide the Petition on the basis of submissions made by the Petitioner in person and Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the alleged true Management.
9 Before we proceed to deal with rival submissions, in our view, it would be appropriate to briefly take a bird''s eye view of the various pending cases against the Petitioner on the one hand and A.K. Inamdar and V.B. Tiwari on the other hand.
(1) In 2002 the Petitioner passed LL.M. with 57% from Mumbai University.
(2) On 11.10.2002 Mr. V.B. Tiwari sent a letter to Mr. A.K. Inamdar stating that there was over excess marking in the LL.M. Paper of the Petitioner as the Petitioner was to appear in interview being conducted for post of a lecturer.
(3) On 12.10.2002, the Petitioner appeared for interview held by the Management, and was selected immediately by the selection committee on merits.
(4) On 12.10.2002 the said A.K. Inamdar refused to sign the selection papers of the Petitioner on flimsy ground that the Petitioner''s original marksheet was not produced. This, despite the fact that the Petitioner had informed him that her marksheet is submitted to University for a consolidated copy of marksheet.
(5) In October/November 2012, Petitioner filed complaint against Mr. V.B. Tiwari under Atrocities Act, now the same is Special Case No. 2 of 2003 at the Azad Maidan Police Station.
(6) On 19.03.2003 the Sessions Court passed an order that Mr. V.B. Tiwari should not enter in the college premises till the final disposal of the said Case. However, he should be paid his regular salary.
(7) On 19.09.2005 the final order was passed and Mr. V.B. Tiwari was acquitted from the charges.
(8) In November, 2002 Mr. A.K. Inamdar was transferred to Dr. Ambedkar College of Law, Wadala as a Lecturer.
(9) In December 2002 Mr. V.B. Tiwari filed complaint before Bar Council of Maharashtra and Goa bearing D.C. No. 230 of 2002 against the Petitioner.
(10) On 5.11.2004 the said D.C. No. 230 of 2002, Complaint against the Petitioner was dismissed by the Bar Council of Maharashtra & Goa, with observations that the same were frivolous.
(11) On 19.12.2002 Mr. V.B. Tiwari filed complaint before the learned Additional C.M.M. 8th Court at Esplanade, questioning the Appellant''s LL.M. Degree and caste to harass the Petitioner.
(12) The said order of dismissal of complaint was challenged by Mr. V.B. Tiwari in High Court vide Cri. Application No. 1430 of 2007 which also came to be dismissed by Hon''ble Justice Shri B.H. Marlapalle, J. vide Order dated 12.07.2007.
(13) Mr. V.B. Tiwari also filed Cri. Writ Petition bearing No. 3193 of 2002 against the Management of the said College for not appointing regular principal and challenging the extension of then principal. The Petitioner was unnecessarily made party to the said proceedings.
(14) On 23.07.2003 the said Writ Petition was dismissed by Justice Shri D.K. Deshmukh with compensatory costs.
(15) Mr. V.B. Tiwari then filed Revision before the High Court bearing Revision Application No. 27 of 2004 in Cri. W.P. No. 3193 of 2002 and also filed Contempt Petition bearing No. 26 of 2004.
(16) On 1.04.2009 the Taxing Master awarded the cost of Rs. 25,000/- to the Petitioner.
(17) On 14.01.2003 the Petitioner came to be appointed as Full Time lecturer in the said College on consolidated salary of Rs. 8,000/- for a probation period of 2 years.
(18) In March 2003 the Petitioner was appointed as Vice-Principal from the designation to Assistant to Principal by the management of Siddharth College of Law.
(19) In 2003 there was a circular from Govt. of Maharashtra that if the candidates who were appointed on consolidated salary basis clear the NET/SET within 2 years from the date of appointment, they must be appointed on regular Govt. Scale. If they fail to do so, they must be terminated.
(20) In June 2003 the Petitioner first appeared in NET exams but the mark sheets of the said exams were misplaced by the University. The same was also informed by University in writing, when Mr. V.B. Tiwari sought the information.
(21) In December 2003 Petitioner again appeared for NET and cleared the said exam. Even after clearing the NET, the Petitioner was being paid the consolidated salary.
(22) On 22.7.2004 then Dy. Chairman Mr. S.S. Rege wrote letter to Chairman that there is politics going on against Petitioner and if she is illegally terminated from the job, then he will also resign from his post.
(23) On 24.8.2004 Mr. A.K. Inamdar was retransferred back from Dr. Ambedkar College of Law, Wadala to Siddharth College of Law as an in-charge Principal.
(24) On 24.8.2004 the Petitioner was illegally terminated, without even a show cause notice, a hearing or following the due process of law, by the Management on the grounds that they did not want full time lecturer.
(25) On 2.9.2004 then Chairman K.H. Ragannath wrote letter to the Petitioner stating that she can re-apply for the same post and "yours is not termination".
(26) In September 2004 the Petitioner approached College and University Tribunal challenging the Order of Termination vide Appeal No. 21 of 2004.
(27) Mr. V.B. Tiwari filed an application for intervention and the same came to be rejected on 30.9.2004 by Hon''ble Justice Shri J.A. Patil (Retd.) on the ground that the application was not for intervention but for interference.
(28) In November 2004 Appeal No. 21 of 2004 of the Petitioner came to be allowed and Hon''ble Justice Shri J.A. Patil directed the management of Siddharth College of Law to reinstate the Petitioner with back wages and also directed them to pay costs to the Petitioner.
(29) In 2004 the Petitioner filed written and detailed complaint to the Mumbai University against Mr. V.B. Tiwari and Mr. Rathod, as she was being physically and mentally harassed at her place of work.
(30) On 28.04.2005 the Grievance Committee of Mumbai University came to the conclusion that Mr. V.B. Tiwari and Mr. Rathod are guilty. It has been certified by the Principal and Secretary of the Management of the said College. Therefore, the Grievance Committee resolved that the College be informed that Mr. Rathod should be brought back to the College and ensure that Mr. V.B. Tiwari does not cause any further harassment to the Petitioner.
(31) On 2-12-2004 Shri A.K. Inamdar visited Kakatia University, Varangal, Andhra Pradesh to inquire into Petitioner''s BA degree certificates and inquire orally at his own costs without informing anybody.
(32) On 10.1.2005 Mr. A.K. Inamdar entered into the class-room front of the students 125-150 while the Petitioner was taking lecture and abused the Petitioner in front of the entire class of law students, when the Petitioner complained to Police, Azad Maidan Police Station registered NC abut the same complaint, Director of Public Prosecutor Maharashtra State opined dated 23.2.2006 that this complaint should be registered as a cognizable offence against Shri A.K. Inamdar u/s 294, 509, 504, 506(II) of IPC and u/s 3(1)(v), 3(1)(x) SC and ST (Prevention of Atrocity) Act are disclosed.
(33) After 4 years i.e. on 31.8.2009, CR was registered against A.K. Inamdar and charge-sheet has been filed. The trial Court has discharged the Accused Mr. A.K. Inamdar and now the State has filed an Appeal, which is subjudice before this Court.
(34) On 25.2.2005 Mr. A.K. Inamdar alongwith his administrative staff entered into the Petitioner''s cabin on the 3rd floor at the Siddharth College of Law, and broke the entire cabin and the Petitioner''s books and personal belongings were taken away.
(35) IO Avinash Sonawane of Azad Maidan Police Station, did not make any panchanama and to shield the crimes of Shri A.K. Inamdar and his associates; he deliberately suppressed facts and fabricated bogus investigation and files ''C'' Summary.
(36) In May 2006 Mr. V.B. Tiwari filed a complaint before Additional CMM, 8th Court, Esplanade u/s 156(3), alleging that the Petitioner has forged the BA degree. The MECR No. 15 of 2006 was registered against the Petitioner on 1.9.2006 at Azad Maidan Police Station.
(37) The said Mr. V.B. Tiwari filed yet another private complaint in 8th Additional CMM''s Court, wherein also MECR bearing No. 5 of 2007 and 6 of 2007 before same Court for offence against Management and Mumbai University, respectively.
(38) In MECR No. 15 of 2006, the Police Authorities filed charge-sheet and in other MECR''s i.e. 5 of 2007 and 6 of 2007, the police authorities filed ''C'' summary report.
(39) On 13.7.2006 Mr. V.B. Tiwari wrote a letter to the Governor of Andhra Pradesh and Secretary, Higher Education, Andhra Pradesh for verification of Petitioner''s alleged bogus B.A. degree.
(40) Petitioner wrote letter to the in-charge Principal, Shri A.K. Inamdar about her full salary, as even though she was NET qualified, she was not getting her full salary. Further Mr. A.K. Inamdar replied that "you have been given consolidated salary, but you are not even qualified as your BA degree is forged, bogus and that is established beyond doubt, so we will recover salary from you which is already given", therefore, Petitioner annexed the reply of Mr. A.K. Inamdar and wrote a letter to Member Secretary of People''s Education Society Mr. D.J. Gangurde, and he replied to the Petitioner that ignore Mr. A.K. Inamdar''s reply, but he remained silent about payment of her salary and dues from the college. Even though the Petitioner was taking 18 lecturers per week, as per University norms.
(42) On 20.7.2006 Sr. PI Mr. V.R. Shinde, EOW received letter from Kakatia University stating that copy of the certificate sent along with your requisition is not in the style and format of our University.
(43) On 2.7.2007 Mr. V.B. Tiwari submitted letter dated 20.7.2006 to IO Mr. Rajendra Zele in MECR No. 15 of 2006.
(44) On the very next day i.e. 3.7.2007 IO Mr. Rajendra Zele sent one person Mr. Jadhav to verify my degree to Kakatiya University.
(45) On 4.7.2007 the information was received by IO Mr. Rajendra Zele that the alleged degree is forged.
(46) On 5.7.2007 the Petitioner was called for investigation and was detained illegally in police custody for 12 hours even though the Petitioner was having anticipatory bail.
(47) On 19-1-2011 Petitioner received information from 2nd Appellate Authority under RTI that they have not received the letter dated 20.7.2006 from Kakatiya University ever.
(48) On 2.1.2007 Mr. ABM Shaikh, Retired City Civil Judge (SD Labour Court, Mumbai) was appointed as a Investigating Officer by the Management of the Siddharth College of Law, by Shri D.J. Gangurde who is member Secretary of the Peoples Education Society/Siddharth College Management.
(49) On 6.3.2007 Mr. ABM Shaikh, retired City Civil Judge (SD Labour Court, Mumbai) who conducted first inquiry, issued a charge-sheet calling upon the Petitioner to respond to the same within two weeks of the receipt thereof.
(50) In 2007 another C.R. No. 27 of 2007 was registered against Mr. V.B. Tiwari which is pending investigation with EOW for last 6 years. The Complainant in that CR is Bank of India.
(51) On 9.4.2008 Petitioner received information under RTI from PSI Mr. Sunil Kadam, EOW that they have neither received any copy of the provisional certificate of the Petitioner from Mr. A.K. Inamdar nor it was sent to Kakatiya University for verification.
(52) On 24.2.2009 the College Management appointed two ex- part time lecturers, who were interested parties, Mr. G.S. Govekar (Rtd. Sessions Judge) as 3rd Inquiry Officer and Mr. B.K. Sawant as Presenting Officer to further conduct the Inquiry, who filed and served the charge-sheet against the Petitioner, and stated that they had revoked the conclusions arrived by the first Inquiry Officer Shri ABM Shaikh, Rtd. City Civil Judge (SD Labour Court, Mumbai); without assigning any reasons for the same.
10 When these disputes were going on between Mr. A.K. Inamdar, Mr. V.B. Tiwari on the one hand and the Petitioner on the other hand, it appears that another incident took place and a brief reference to the said incident is necessary for the purpose of taking into consideration how the in-charge Principal and Mr. V.B. Tiwari had used the said incident to their advantage in trying to obtain information against the Petitioner from the Kakatia University.
Mr. K.L. Bishnoi Episode
(1) On 12.3.2005 Petitioner was appointed as examiner to conduct practical examination including viva/oral test of 3rd year LL.B. Students at Siddharth College of Law and the exam was scheduled to commence at 8.30 hours and a total number of 15 students name was typed on the list allotted to the Petitioner. The Petitioner also noticed that the name of one more student Mr. K.L. Bishnoi appeared in bottom of the list of students allotted to her and the same was at serial number Ex. 13, which was hand written along with marks allotted in hand-writing of I/c Principal Mr. A.K. Inamdar and even attendance sheet was sent with the mark sheet to the Petitioner.
(2) The attendance sheet showed that there was no signature against the name of the final year student Mr. K.L. Bishnoi, and the Petitioner had then also objected to marks being allotted to Mr. K.L. Bishnoi even though she had never taken any practical exam of the said Mr. K.L. Bishnoi and also because he was not even present at the college on that date at all, as the space where he was required to sign was also kept empty and his sign was not there. It is important to note that at this stage the Petitioner never knew who the said Mr. K.L. Bishnoi was or his being a police officer, while the same facts were in full knowledge of the said Mr. A.K. Inamdar, college management, and also the officials of the University of Mumbai.
(3) This is when all the troubles and harassment of the Petitioner got more crystallised and pronounced.
(4) On 14.3.2005 Petitioner enquired with the college peon and asked him to produce the said attendance sheet and was shocked and surprised to see that on 12.3.2010 (Saturday) when the said sheet was submitted with in charge Principal, there was no signature of the student at Sr. No. 16, however, on 14.3.2010 when the said sheet was again produced before the Petitioner, it appeared that the student at Sr. No. 16 has signed the said sheet.
(5) From 14.3.2005 to 17.3.2005, Petitioner made an oral complaint with Mr. A.D. Sawant, Pro-Vice Chancellor and Chairman of Board of Examination.
(6) On 18.3.2005 Petitioner filed the written complaint to the Mumbai University, about the bogus marks being allotted to Mr. K.L. Bishnoi during the practical exams in final year LL.B. Exams conducted by the Petitioner.
(7) On 1.4.2005 Mumbai University called for explanation from Mr. A.K. Inamdar regarding the Petitioner''s complaint dated 18.3.2005 about the bogus marks being allotted to the said Mr. K.L. Bishnoi.
(8) On 2.4.2005 Mr. A.K. Inamdar filed his written explanation to the University of Mumbai about Petitioner''s complaint dated 18.3.2005 about the bogus marks allotted to Mr. K. Bishnoi by Mr. A.K. Inamdar despite the fact that Mr. K.L. Bishnoi had not appeared in the exams.
(9) On 6.5.2005 Mr. A.K. Inamdar addressed a direct letter personally to Mr. K.L. Bishnoi making allegations that the Petitioner''s BA degree is allegedly bogus and sought that the police should inquire about its authenticity from Kakatia University, Warangal, Andhra Pradesh.
(10) The said Mr. K.L. Bishnoi who was Additional commissioner of Economic Offences Wing, Mumbai, put his remarks reflecting "URGENT" in the matter on the same date and this shows his undue personal interest in the case only after the Petitioner had raised the issue of his being allotted bogus marks at oral / practical exams.
(11) On 11.5.2005 Sr. PI Shri V.R. Shinde forwarded the complaint to Kakatia University of Mr. A.K. Inamdar to Mr. K.L. Bishnoi.
(12) On 17.5.2005 Kakatiya University replied that they cannot verify the records without photocopy of the Petitioner''s alleged, bogus B.A. Degree certificate, roll No. , year of passing and demand draft of Rs. 300/-.
(13) On 31.5.2005 Sr. PI Shri V.R. Shinde sends a reminder letter to Kakatia University again for verification of alleged bogus B.A. Degree of Petitioner (without photocopy of Petitioner''s B.A. Degree certificate).
(14) On 23.6.2005 Mr. K.L. Bishnoi has sent a letter to Kakatiya University for verification of Petitioner''s alleged bogus BA degree with his own signature along with one API Shri Sunil Kadam and Demand Draft of Rs. 300/-.
(15) On 13.7.2005 Kakatiya University again sent a letter to Sr. IP of Economic Offences Wing asking for the copy of certificate for verification of Petitioner''s alleged bogus BA degree certificate.
(16) On 15.12.2005 again said Mr. K.L. Bishnoi sent API Shri Patel along with letter with his own signature to verify Petitioner''s alleged bogus BA degree verification. Petitioner received information under RTI that Mr. Patel, API spent money from his own pocket for stay and food etc.
(17) In April 2006 D.J. Gangurde informed the Petitioner in writing that he has been orally informed by the Registrar of Kakatia University that the Petitioner has passed the B.A. Degree as an external student in the academic year 1987-88.
(18) On 22.3.2006 Mr. V.B. Tiwari filed RTI application with Mumbai University asking them to produce the hall ticket and confirmation of B.A. Degree of the Petitioner.
(19) Mumbai University informed Petitioner vide letter dated 25.5.2006 that the Petitioner''s eligibility is confirmed by the University in Academic Year 1989-90 as per official records. Mumbai University further states that original degree is confirmed on the basis of original marksheet certificate and migration certificate and original sent thereafter to the concerned college.
11. The aforesaid facts have been narrated only for the purpose of highlighting the fact as to how the Management had proceeded in permitting two of its Staff to take vengeance against the Petitioner who had filed complaints after complaints against her before various authorities. In the light of the background of the facts narrated hereinabove, rival contentions will have to be taken into consideration.
12. In the present case, it is an admitted position that the Petitioner after passing her B.A. Degree examination had taken admission for LL.B. Decree Course in Siddharth College and, at that time, her B.A. Degree Certificate was verified. Thereafter, after completing her LL.B. Course, she took admission for LL.M Course and at that time also all these Certificates were verified. Thereafter, she was appointed as lecturer in Siddharth College after she was duly selected and she had tendered the original B.A. Degree Certificate and other documents which certificate and other documents were also verified by the University of Mumbai. The Petitioner, thereafter, was teaching in Siddharth Law College for number of years. It was only after the Petitioner passed her NET/SET examination, suddenly this entire episode of the validity of the B.A. Degree Certificate commenced. At the same time, alleged K.L. Bishnoi incident took place. There is material on record which shows that the Officers of Economic Offences Wing, though they were not concerned with the complaint which was filed at Azad Maidan Police Station and though no assistance was sought by the said Police Station, personally went to Kakatia University to procure the information about the Petitioner''s B.A. Degree Certificate. Though the College all along had the original B.A. Degree Certificate of the Petitioner, the said document was never produced either in the charge-sheet which was filed in the Court of Metropolitan Magistrate by Mr. V.B. Tiwari or before the three Inquiry Officers who conducted the inquiry viz Mr. A.B.M. Shaikh, retired City Civil Court Judge, Justice P.S. Patankar, retired Judge of the High Court, Bombay and Mr. B.S. Govekar, retired Sessions Judge. The Presiding Officer of the College Tribunal, on the other hand, had asked the Petitioner to produce at least a xerox copy of he said B.A. Degree Certificate when the Petitioner had consistently taken a stand that xerox copy was also not available and the Progressive Classes were closed.
13. It has been argued by Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the alleged true Management that the LPA is not maintainable. This submission is without any substance. Writ Petition was filed by the Petitioner under Article 226 of the Constitution of India and, as such, against the order of rejection of the Writ Petition in limine, LPA is maintainable. The Full Bench of this Court in
20. Upon this discussion, we now proceed to answer the questions formulated in the order of reference:
Re: 1 : It is not a correct proposition in law that this Court cannot correct jurisdictional errors or errors resulting in miscarriage of justice committed by authorities which are subordinate to it by invoking powers under Article 226 of the Constitution.
Re: 2 : It is not a correct proposition in law that jurisdictional errors or errors resulting in miscarriage of justice committed by subordinate Courts/Tribunals can only be corrected by this Court in exercise of powers under Article 227 of the Constitution. The writ of certiorari can be issued under Article 226 of the Constitution where the subordinate Court or Tribunal commits an error of jurisdiction. Where the subordinate Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise jurisdiction, that error of jurisdiction can be corrected. Moreover when the Court or tribunal has acted illegally or improperly such as in breach of the principles of natural justice the writ of certiorari is available under Article 226.
Re: 3 : Where the facts justify the invocation of either Article 226 or Article 227 of the Constitution to correct a jurisdictional error or an error resulting in a miscarriage of justice committed by authorities subordinate to this Court, there is no reason or justification to deprive a party of the right to invoke the constitutional remedy under Article 226 of the Constitution.
Re: 4 : It is open to the Court while dealing with a petition filed under Articles 226 and/or 227 of the Constitution or a Letters Patent Appeal under Clause 15 of the Letters Patent arising from the judgment in such a petition to determine whether the facts justify the party in filing the petition under Article 226 and/or 227 of the Constitution.
Re: 5 : The cause title, the averments and prayers in the petition can be taken into account while deciding whether the petition is one under Article 226 and/or 227 of the Constitution.
Re: 6 : If the petitioner elects to invoke Article 226 and/or 227 of the Constitution and the facts justify such invocation, a Letters Patent Appeal against the order of the Learned Single Judge would be maintainable even though the Single Judge has purported to exercise jurisdiction only under Article 227 of the Constitution. The fact that the Learned Single Judge has adverted only to the provisions of Article 227 of the Constitution would not bar the maintainability of such an appeal. The true test is whether the facts justify the invocation of Articles 226 and 227 and this has to be determined on the facts of each case having due regard to (i) the nature of the jurisdiction invoked; (ii) the averments contained in the petition; (iii) the reliefs sought; and (iv) the true nature of the principal order passed by the Single Judge. The true nature of the order passed by the Single Judge has to be determined on the basis of the principal character of the relief granted. The fact that an ancillary direction has been issued under Article 227 of the Constitution would not dilute the character of an order as one with reference to Article 226. What has to be ascertained is the true nature of the order passed by the Single Judge and not what provision is mentioned while exercising this power.
Re: 7 : Where a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not lawful for the Court to hold that jurisdictional errors or errors resulting in a miscarriage of justice committed by the subordinate Courts or Tribunals can be corrected only by exercising powers under Article 227 (and that the mentioning of Article 226 is redundant), thus depriving the party of a right of appeal under Clause 15 of the Letters Patent.
Re: 8 : When a petition is filed under Articles 226 and 227 of the Constitution and the facts justify the filing of such a petition, it is not open to the Court to hold that Article 226 need not have been invoked, on the ground that Article 227 is clothed with the power to grant the same relief thus depriving the party of a right to elect or choose a remedy.
Re: 9 : In a situation where a petition is filed under Article 227 of the Constitution and judgment is rendered in favour of the Petitioner, recourse to an appeal under Clause 15 of the Letters Patent is not barred to the Respondent before the Single Judge merely on the ground that the petition was under Article 227. In State of Madhya Pradesh vs. Visan Kumar Shiv Charanlal (supra), the appeal before the Division Bench was filed by the Respondent to the proceedings before the Single Judge in a petition which had been instituted under Article 227. Accepting the submission that a nomenclature is of no consequence and it is the nature of the reliefs sought and the controversy involved which determine which Article is applicable, the Supreme Court held that the appeal before the Division Bench was maintainable. A similar position arose in the decision of the Supreme Court in M.M.T.C. vs. Commissioner of Commercial Tax (supra). The Division Bench of the High Court had held that since the petition before the Single Judge was under Article 227 of the Constitution, an appeal at the behest of the Respondent to the petition was not maintainable. The Supreme Court held that the High Court was not justified in holding that the Letters Patent Appeal was not maintainable since the High Court did not consider the nature of the controversy and the prayers involved in the Writ Petition.
14. In our view without going into the merits of the case at hand, it will have to be seen whether principles of natural justice were violated by the Inquiry Officer. Taking into consideration the admitted facts, in our view, it is apparent that no proper opportunity was given to the Petitioner to represent her case before the Inquiry Officer. Apart from the fact that the inquiry, though it was pending for 108 weeks, was completed practically in 3 to 4 sittings itself shows the undue haste in which the said inquiry was completed. There is no doubt that Division Bench of this Court had granted extension for a period of eight weeks. It was open for the Management to have sought further extension so as to enable the Petitioner to properly represent herself. The request was made to the Inquiry Officer that the inquiry may not be held during court hours in view of number of cases which were filed against the Petitioner in the Magistrate''s Court and in the High Court and in other forums. The said request was declined and, as a result, when the Petitioner was unable to attend the proceedings on account of being busy appearing in the High Court, the Inquiry Officer abruptly closed the inquiry on 20/03/2009 without permitting the Petitioner to cross-examine the Management witnesses or giving opportunity to her to examine her own witnesses. He, thereafter, submitted inquiry report to the Management on 23/03/2009. The Notice of Motion filed by the Petitioner seeking direction of the Court to direct the Inquiry Officer to permit her to cross-examine the witnesses was pending even on 20/03/2009 when he abruptly closed the proceedings and next date was 24/3/2009. In spite of knowing this fact, the Inquiry Officer tendered the report on 23/03/2009. When the Notice of Motion came up before the Division Bench of this Court on 24/03/2009, the Management did not inform the Division Bench of this Court that the inquiry report was already submitted by the Inquiry Officer. Since this fact was suppressed by the Management before the Division Bench of this Court, Division Bench allowed the Notice of Motion filed by the Petitioner and directed the Inquiry Officer to permit the Petitioner to cross-examine the Management witnesses. The Inquiry Officer by letter dated 27/03/2009 told the Petitioner that she would be given an opportunity to cross-examine the witnesses on 30/03/2009 and no further adjournment would be given. Accordingly, the Petitioner cross-examined two witnesses on 30/03/2009. Surprisingly, the Inquiry Officer on the same day i.e. on 30/03/2009 sent a letter to the Management informing them that he did not wish to review his earlier report which was tendered by him on 23/03/2009 and made same recommendations as he had made on 23/03/2009. No opportunity whatsoever was given by the Inquiry Officer to the Petitioner to examine her own witnesses. The said sequence of event itself clearly discloses that there was clar breach of principles of natural justice and also, indirectly, the orders passed by this Court were violated. It was the duty of the Inquiry Officer to have withdrawn his earlier report and after the Petitioner cross-examined the Management witnesses, he ought to have taken into consideration the said cross-examination and submitted a fresh report. The very fact that in his letter to the Management which was issued on the same day on which the cross-examination was over, he mentioned that he does not feel it necessary to review his own order clearly shows that he had prejudged the said issue and was determined to make recommendations of removal of the Petitioner. In our view, there is gross violation of the principles of natural justice and the conduct of the Inquiry Officer clearly shows that he had not acted in free and impartial manner in conducting the inquiry against the Petitioner. It is a well settled position in law that even domestic inquiry, the Inquiry Officer as to act in just and fair manner and though he is appointed by the Management he should ensure that justice is not only done but seen to be done.
The Apex Court in
(8) ......... This omission in our judgment was sufficient to vitiate the whole proceeding because no enquiry of this type in which there are charges of a criminal nature, can be said to be properly conducted when the defence of the officer is either frustrated or ruled out.
15. In our view, therefore, Presiding Officer has clearly committed an error of law which is apparent on the face of record in holding that there was no violation of principles of natural justice and that the Inquiry Officer had acted in fair and unbiased manner. The learned Single Judge also has not taken into consideration this aspect of the case. The Judgment and order passed by the Presiding Officer and the learned Single Judge, therefore, will have to be quashed and set aside. The reports tendered by the Inquiry Officer dated 23/03/2009 and 30/03/2009 also will have to be quashed and set aside on the ground that proper opportunity was not given to the Petitioner and, therefore, there was breach of principles of natural justice and that he had prejudged the issue and had not followed the directions given by Division Bench of this Court in letter and spirit. We make it very clear that we do not propose to make any comment on the merits of the controversy at this stage.
16. In the result, appeal is allowed. The judgment and order passed by the learned Single Judge and Presiding Officer, College Tribunal are quashed and set aside. Reports tendered by the Inquiry Officer dated 23/03/2009 and 30/03/2009 are set aside and quashed. Liberty is given to the Management to hold fresh inquiry if they so desire. However, the Management is directed to appoint new Inquiry Officer. The inquiry shall be completed expeditiously within six months. Since the reports are quashed and set aside, the order of termination which is passed against the Petitioner is set aside & quashed and we direct the Management to reinstate the Petitioner with full back-wages within eight weeks from today. Appeal is accordingly allowed in the above terms and disposed of.
