Partly allowed

M/S.Vatsala Premchand Sarmal. v. Raghunath Damodar Khachale and Anr.

Bombay HC29 Nov 2006WP/2775/1992

Case brief

AI extract

What is this about?

In a writ petition challenging a disciplinary dismissal, the Single Judge of the Bombay High Court quashed the Tribunal's order to the extent it held that the enquiry was vitiated solely due to non-payment of subsistence allowance. The Court found the employee failed to establish prejudice and had an obstructive attitude during proceedings.

What did the court decide?

The Judgment and Order of the College Tribunal allowing the appeal was quashed and set aside to the extent it held the inquiry was vitiated on account of non-payment of subsistence allowance.

M/S.Vatsala Premchand Sarmal. Vs Raghunath… — Pension and Retirement Benefits | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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O.O.C.J.

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WRIT PETITION NO. 2775 OF 1992

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Mrs. Vatsala Premchand Sarmal. ... Petitioner.

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vs.

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Mr. Raghunath Damodar Krachale & Anr. ... Respondents.

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Mr. A.D. Shetty with Ms. Shobhana Gopal i/b. Sanjay Udeshi & Co. for the Petitioner.

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Mr. N.M. Ganguli for the Respondents.

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CORAM : DR. D.Y. CHANDRACHUD,J.

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29TH NOVEMBER, 2006.

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ORAL JUDGMENT :-

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The First Respondent joined the services of the Hazarimal Somani College of Commerce and Economics as a Senior Clerk in the Accounts Department in the month of April 1971. In 1976, he was discharging the duties of an Accountant. On 2nd October 1981, a charge-sheet was

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issued to the First Respondent. The articles of charge

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were thus :-

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(i) During 1976-1977 the First Respondent had allegedly collected a sum of Rs.4785/from 383 students of the Junior College by charging fees for preparatory classes which were not shown in the accounts of the College;

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(ii)	During	1978-79 when the	First Resp	ondent	was i	n
charge	of	accounts both	for	the	D	egree	and Junior		College
one	Professor	Verghese	was	appo	inted	as	a lecturer		upto
31st	March	1979 aft	er whi	ch	date,	the	aforesaid		teacher
did	not a	ttend the	College.		The	First	Respondent		had
allegedly	drawn	the salary	of	the	a	foresaid	teacher	in	the

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pay-sheets between April and August 1979 which was

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credited to the account of the teacher;

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(iii) During the period from April 1979 to January 1980, the First Respondent had allegedly made payment to

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temporary employees in respect of days on which they had not worked in the College;

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(iv)	Dur	ing February	and March	1977,	the First
Respondent		allegedly	ma	de	payments	to ce	rtain		Lecturers
once	for	extra	lectures	and	thereafter	once	again.		The
First	Respo	ndent	had	allege	dly, in	collusion		with	the

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Registrar withdrawn an amount of Rs.9286 for payments to

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the aforesaid persons;

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(v)	During 1976-7	7, bearer ch	eques	were allegedly d	rawn
in the	names	of	the	aforesaid	teac	hers	enabling	the
withdrawal	of an	amount	of	Rs.9286/-	in	cash,	though	the

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practice of the College was to issue only crossed cheques

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and credit the account of the concerned teacher;

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(vi) During 1979-80, the First Respondent had a cash balance of Rs.8820/of the Degree College and Rs.225/of the Junior College including fees collected from the

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students. Instead of depositing the amount, the First

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Respondent misappropriated it;

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(vii) The First Respondent failed to regularly maintain the cash books and ledgers of the Degree College and the Junior College for the period from April 1980 to December 1980. As a result, there was a delay in completion of audit work and since the papers for the grant in aid could

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not be submitted in time, the Colleges did not get grant

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in aid of Rs.3,55,133/-;

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(viii) The first Respondent did not obtain stamped

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receipts from the teaching and non-teaching staff for

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salaries paid between 1976-1977 and 1979-1980.

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The First Respondent filed a reply to the

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charge-sheet on 31st October 1981 and denied the charges.

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In contemplation of disciplinary proceedings, the

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First	Respondent	was sus	pended from service on	27th
February	1981.	The e	nquiry commenced on 26th	October
1982.	The	First Res	pondent participated in the	enquiry
initially.	After	11 s	ittings of the enquiry	were
completed	the	First Respo	ndent remained absent. On	6th
May	1983, the	Enquiry O	fficer submitted his report	holding
the	First Respon	dent guilty	of all the charges. On	28th
October	1983,	a notice to	show cause was issued to	the
First	Respondent	upon the	report of the Enquiry	Officer.
No r	eply was	filed by	the First Respondent. In	the
meantime,	the	First Respond	ent had filed a Writ	Petition
before	this Co	urt seeking	the payment of his su	bsistence
allowance.	On	28th Nove	mber 1983, Hon’ble Mrs.	Justice
Sujata	Manohar	(as the	learned Judge then was)	while
disposing	of	the Petition,	recorded the statement of	the
Petitioner	herein	that the	First Respondent shall be	paid
subsistence	allowance	as per	the rules from November	1983,
on his	submitting	every m	onth a certificate as required	by
Rule	69(4)	of the	Maharashtra Civil Services	(Joining
Time,	Foreign	Service....	Removal) Rules, 1981.	In
respect	of the	arrears, a	dispute was pending before	the

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Labour Court which was directed to be disposed of

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expeditiously.

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On 9th December 1983, the First Respondent came to

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be dis	missed	from service. An appeal was	filed	before	the
College	Tribu	nal by the First Respon	dent	under	the
provisions	of	the Bombay University Act	,	1974.	The
Tribunal	by	its Judgment and Order dated	11th	S	eptember
1992	came	to the conclusion that charges	(ii),	(vi)	and
(vii)	were	established. The Tribunal	held	that	the
charges	w	hich were established were serious	in	nature	and
even	though	it had come to the conclusion	that	the	other
charges	had	not been proved, the punishm	ent	inflicted	upon
the	First	Respondent would have been	sustai	ned.	The
Tribunal	fo	und that the First Respondent	had	o	bstructed
the	disciplin	ary enquiry. All the objection	s	urged	on
behalf	of	the First Respondent in regard	to t	he	fairness
of the	enqu	iry were overruled. However,	the	Tribunal	held
that	the	enquiry was vitiated only on the	gro	und tha	t the
First	Respo	ndent was not paid his sub	sistence	a	llowance
during	the	pendency of the disciplinary pro	ceedings	.	On
this	ground	alone, the Tribunal held that	the	order	of
dismissal	wa	s null and void and directed	that	the	First

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Respondent be re-instated in service with back wages from

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the date of his suspension.

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In assailing the correctness of the order passed by

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the Tribunal, Counsel appearing on behalf of the

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Petitioner submits that :

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(i) The First Respondent had neither pleaded nor proved

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any prejudice to his participation in the disciplinary

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proceedings, consequent upon the non-payment of the subsistence allowance;

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(ii) The Supreme Court has held in Indra Bhanu Gaur V/s. Committee, Management of M.M. Decree College, 2003 (99) FLR 1940 and in U.P. State Textile Corporation Ltd. V/s. P.C. Chaturvedi , (2005) 8 SCC 211 that non payment of subsistence allowance would not ipso facto invalidate a disciplinary proceeding unless the employee substantiates

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that the non-payment was either deliberate or to spite him

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and unless prejudice is shown and established;

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(iii)	Before	the Tribunal the pleading of the Fir	st
Respondent	in	fact was that he	had	not participated	in the
disciplinary		proceedings after he	init	ially appeared	at a
few	sittings,	on the ground	of	the ‘vindictive	attitude
shown	by	the representative of	the	College in	collusion
with the	En	quiry Officer’. Hence	, no	prejudice on	account

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of the non-payment of subsistence allowance was

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established;

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(iv) The case of the management was that the First Respondent was employed by the Bombay Labour Union. Before the Tribunal the management sought the issuance of

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a witness summons to the union for the production of its

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record which was opposed by the First Respondent; and

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(v) Apart from there being no prejudice to the First Respondent as a result of the non-payment of subsistence allowance, the Tribunal recorded that it was the First

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Respondent who had adopted an obstructive attitude in the

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disciplinary proceeding.

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On the other hand, on behalf of the First

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Respondent, Counsel supported the order of the Tribunal

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and urged that :

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(i)		No in	terference of	this Court under	Artic	le 226	of
the		Constituti	on is	warranted,	sin	ce	the de	cision	of	the
Tribunal		was	consistent	with the	l	aw	as it	then	stood	on
the	date	of	the	decision.	In	any	case	a	mere	wrong
decision		is	not	a ground	for	the	exercise	of	the	writ

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jurisdiction under Article 226 as held by the Supreme

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Court in AIR 1984 S.C. 38;

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(ii) In the judgment of the Supreme Court in Indra Bhanu’s Case (Supra) the earlier Judgment in Fakirbhai

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Fulabhai Solanki V/s. Presiding Officer, (1986) LAB.I.C. 879 has not been considered;

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(iii) The denial of subsistence allowance is itself a matter of prejudice and no further prejudice is required to be shown or established; and

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(iv) Though the First Respondent had submitted certificates required under Rule 69(4) of the Maharashtra Civil Services Rules, 1981, no subsistence allowance was paid by the management.

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7.	At the	outset,	before dealing w	ith the rival
submissions,	it	woul	d be	important	to note	that	the
Tribunal	has	held	that the	findings	of m	isconduct	in
respect	of cha	rges	(ii), (vi)	and	(vii) stan	d est	ablished.
The	Tribunal	has	also held	that the	charges	which	were
established	were	of	a serious	nature	and, except	for	its
finding	that	the	enquiry was	vitiated	on the	ground	of
non-payment	of		subsistence	allowance,	it would	not	have
interfered	with	the	penalty	of d	ismissal.	The	First
Respondent	has	not	filed any	proceedi	ngs before	this	Court

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to c	hallenge the Judgment of the Tribunal	in so	far	as it
came	to the conclusion that the finding	of m	isconduct	has
been	proved. The basic issue however,	that	falls	for
determinatio	n is whether the disciplinary	enq	uiry	was
vitiated	purely and solely on account of	the fact	-	now
admitted	before the Court - that the	subsisten	ce a	llowance
that	was due and payable to the First Re	spondent	was	not
paid.	After a learned Single Judge of	this Co	urt	passed
an o	rder on 28th November 1983, the ma	nagement	paid	the
subsistence	allowance to the First Resp	ondent	but	shortly
thereafter,	he was dismissed from service	with	effect	from
9th	December 1983. Prior thereto, by a	letter	dated	11th
December	1981, the management had inf	ormed	the	First
Respondent	that in breach of the service	rules	he	had
accepted	employment elsewhere. The First	Respond	ent	was
therefore,	required to report to the College	every	day	and
to	sign the attendance register. There	is a	con	siderable
degree	of correspondence between the man	agement	and	the
First	Respondent. According to the ma	nagement,	the	First
Respondent	was required by Rule 69(4) of	the	Ma	harashtra
Civil	Services Rules 1981 to furnish	a cert	ificate	before
payment	was made every month to the	effect	that	the
employee	had not accepted any private	emp	loyment	or

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engaged in trade or business during the period in

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question. Rule 69(4) reads thus :-

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"Rule 69(4) - No payment under Rule 68(1)
shall be made unless the Government servant
furnishes a certificate to the following
effect before payment is made every month :-
"I certify that I did not accept any private
employment or engage myself in trade or
business during the period in question."
If the authority has any reasons to doubt
this certificate; it may ask the Police
Authorities to verify the certificate and if
the Government servant is found to have given
a false certificate that should be construed
as an act of misconduct and made an
additional charge against him.
In the case of Gazetted Officers under
suspension, they should furnish the
certificate themselves to the Treasury
Officer/Audit Officer, who should see that
the certificate is furnished before the claim
for payment is admitted. In case of doubt
regarding the certificate, the case should be
referred to the Head of Department, who will
ask the Police Authorities to verify the
same."

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8. From the record of the case, it appears that the

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First	Respon	dent	had	from	ti	me to	time		furnished
certificates	for		a	consolidated		period	and	on	some
occasion	for	a	shorter	period	as	required.	Ho	wever,	there
is	no	disp	ute	about the	fact	that	subsistence		allowance
was	not	paid	until	an order	was	passed	by this	Court	on

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28th November 1983. Thereafter, as already noted above,

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the amount was paid prospectively.

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The Tribunal has relied upon the judgment of the

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Supreme	Court in Fakirbhai Fulabhai Solanki v/s.
Presiding	Office (1986) LAB. I.C. 879 and held that the
non	payment of subsistence allowance vitiated the
disciplinary	proceedings. Fakirbhai’s case involved a
protected	workman as defined in sub-Section 3 of Section
33 of	the Industrial Disputes Act, 1947 against whom a
finding	of misconduct was arrived at in a disciplinary
proceeding.	The workman was in receipt of his salary and
allowances	till the end of the disciplinary enquiry.
However,	from 13th August 1979, the workman was suspended
from	service pending the disposal of the application
before	the Tribunal after he had been found guilty at the
domestic	enquiry but without any wages or allowances. The
workman	was not paid any subsistence allowance till 5th
August	1985 when the Tribunal passed its order granting
permission	to the management to dismiss the workman. In
paragraph	4 of the Judgment of the Supreme Court, the
Court	noted the submission of the workman that since he
was	denied the subsistence allowance, it was not possible
for	him to defend himself effectively before the Tribunal
in the	proceeding relating to the permission prayed for by
the ma	nagement under Section 33(3) of the Act and
therefore,	the permission granted by the Tribunal was
vitiated.	The workman relied on the judgment in State of

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Maharashtra v/s. Chandrabhan Tale (198	3) 3 S.C.C.	387
(AIR 1983 SC 803) where the Supreme	Court held that	the
provisions of the Bombay Civil Servic	es Rules, 1959	under
which a nominal sum of Rs.1/- per mo	nth was payable	from
the date of conviction was unreasonable	and void.	The
Supreme Court had held that a	civil servant	under
suspension is entitled to normal	subsistence	allowance
even after his conviction by the Trial	Court pending	the
disposal of his Appeal. In Fakirbhai’s	case, a Bench	of
two Learned Judges of the Supreme Cou	rt held that w	hen an
application was made under Section 33	to the Tribu	nal for
the grant of approval, the workman	was entitled to	defend
himself and to oppose the application	for the grant	of
approval. The proceedings before the	Tribunal were	likely
to take a long period of time and	in that case	were
pending for 6 years. In order to	defend himself,	the
workman had to incur expenses in	connection with	the
proceedings before the Tribunal. The	Supreme Court	held
that the workman should have been paid	some amount	by way
of subsistence allowance during the	pendency of	the
proceedings before the Tribunal to	maintain himself	and
his family and to meet the expenses o	f the litigation.	If
no amount was paid, the Court held,	there would	be a
denial of an opportunity before the Tri	bunal. The	Supreme
Court had noted that no material	was placed b	y the

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employer to show that the workman had sufficient means for

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defending himself before the Tribunal.

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10. The	issue as to whether the non-pa	yment o	f
subsistence all	owance would		vit	iate		dis	ciplinary
proceedings was	thereafter considered	by	a	Bench of			two
learned Judges	of the Supreme Court	in	Capt.	M.			Paul
Anthony V/s.	Bharat Gold Mines	Ltd.		(1999)		L	LJ-1094.
That was a	case where as a res	ult o	f the	non pay	m	ent	of
the subsistence	allowance, it was	urged	on	behalf o	f		the
Appellant-workman	that he could	not	undert	ake a			journey
from his hom	etown in Kerala t	o Ko	lar	Gold F	i	elds	in
Karnataka wher	e the departmental	pr	oceeding	s were			being
held. The Su	preme Court noted	that	though	the q	u	estio	n as
to whether the	Appellant was unable	to	trav	el to	t	he	place
where the en	quiry had been held	on	acco	unt of		non-	payment
of subsistence	allowance, may	not	hav	e been			raised
earlier, it wa	s not suggested by	the	Respo	ndent tha	t		the
Petitioner had	any other so	urce	of	income.			The
adjournment sought	by the work	man	on	account		of	his
illness which	was duly supported	by	a	medical		c	ertificate
was also re	fused resulting in		the	proceedings			being

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proceeded with ex-parte. The Supreme Court observed as follows :-

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"33. Since in the instant case the Appellant was not provided any subsistence allowance

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during the period of suspension and the
adjournment prayed for by him on account of
his illness, duly supported by medical
certificates, was refused resulting in
ex-parte proceedings against him, we are of
the opinion that the appellant has been
punished in total violation of the principles
of natural justice and he was literally not
afforded any opportunity of hearing.
Moreover, as pleaded by the appellant before
the High Court as also before us that on
account of his penury occasioned by
non-payment of Subsistence Allowance, he
could not undertake a journey to attend the
disciplinary proceedings, the findings
recorded by the Inquiry Officer at such
proceedings, which were held ex-parte, stand
vitiated."

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11.		The	next Judgm	ent to wh	ich it	would	be necessa	ry
refer	is	the	Judgment	of	a	Benc	h of	two	learned	Judges	of
the	Supre	me	Court	in In	dra	Bhan	u Gaur		v/s.	Com	mittee,
Managem	ent	of	M.M.	De	cree	Coll	ege.	The	services	of	a
Principal	ca	me t	o be	termi	nated	o	n a	findi	ng of	misc	onduct
by	an	Enquiry	Comm	ittee.	B	efore	the	Supre	me Court	one	of
the	submi	ssions	was	that		the	order	of	dismis	sal	was
vitiated		since	no	subs	istence		allowance	wa	s paid		during

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the pendency of the enquiry. Dealing with the submission,

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the Supreme Court held thus :-

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" We	find that ther	e was	total	lack	of
cooperation	from the app	ellant	as	the	factual
background	highlighted abov	e	would	go	to
show.	Ample opportunity	was	granted	to	the
appellant	to place his	case.	He	did	not
choose to	do so. It is	only	a pers	on who	was
ready	and willing to	avail	of	opp	ortunity
given	can make a g	rievance	about	denial	of
any o	pportunity and not	a	person	like	the
appellant	who desp	ite	repeated	oppo	rtunities

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given	and	indulgence shown exhibited	defiance
and	to	tal indifference in e	xtending
cooperation.		Therefore, on that score	the
appellant		cannot have any grievance. So	far
as	the	effect of not paying the su	bsistence
allowance		is concerned, before	the
authorities		no stand was taken that	because
of	no	n-payment of subsistence allowance,	he
was	not	in a position to participate in	the
proceedings,		or that any other prejudice	in
effectively		defending the proceedings	was
caused	to	him. The appellant could not	plead
or su	bstant	iate also that the non-payment	was
either	delibe	rate or to spite him and not	due
to his		own fault. It is ultimately	a
question		of prejudice. Unless prejudice	is
shown		and established, mere non-payment	of
subsistence		allowance cannot ipso facto be	a
ground		to vitiate the proceedings in	every
case.		It has to be specifically pleaded	and
established		as to in what way the	affected
employee		is handicapped because	of
non-receipt		of subsistence allowance.	Unless
that	is	done, it cannot be held as	absolute
proposal		in law that non-payment	of
subsistence		allowance amounts to denial	of
opportunity proceedings.	and "	vitiates departmental

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The Judgment in Indra Bhanu Gaur’s case was

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followed	in	the	Judgm	ent	of	the	Supreme	Court	in U.P.
State	Textile	Corp	oration	Ltd.		V/s.		P.C.	Chaturvedi
(2005)	8	S.C.C.	211.		D	ealing	with the	conse	quences of

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non-payment of subsistence allowance, the Supreme Court

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held thus :-

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" So	far	as	the effect of no	t paying	the
subsistence		allowan	ce is conc	erned,	before
the author	ities	no	stand was	taken	by
Respondent		I	employee that	because	of
non-payment		of	subsistence allowa	nce, he	was
not in		a	position to particip	ate in	the
proceedings,		or	that any other	prejudice	in

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effectively		defending	the proceedings	was
caused	to	him.	He did not plead	or
substantiate		also	that the non-payment	was
either	deli	berate	or to spite him. It	is
ultimately		a q	uestion of prejudice.	Unless
prejudice		is	shown and established,	mere
non-payment		of	subsistence allowance	cannot
ipso f	acto	be	a ground to vitiate	the
proceedings		in e	very case. it has to	be
specifically		pleaded	and established as to	in
what	way	the	affected employee is han	dicapped
because		of	non-receipt of su	bsistence
allowance.		Unless	that is done, it cannot	be
held	as	an	absolute position in law	that
non-payment to denial of departmental	oppo procee	rtunity and dings."	of subsistence allowance vitiates	amounts

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13.	Counsel appearing on behalf of the First
Respondent	submitted that the subsequent Judgment	s in
Indra	Bhanu Gaur (Supra) and U.P. State	Textile
Corporation	(Supra) have not considered the earlier	view
in	Fakirbhai’s case. The submission, in my view,	would
not	carry the case of the First Respondent any	further,
because	a careful reading of all the Judgments	of the
Supreme	Court which have been adverted to	hereinabove
would	demonstrate a common thread of	reasoning.
Fakirbhai’s	case arose out of an application for	approval
to the	dismissal of a workman, found guilty of	misconduct,
under	Section 33(3) of the Industrial Dispute Act,	1947.
The	submission before the Supreme Court was, as a	matter
of	fact that the denial of subsistence allowance	during
the	pendency of the proceedings before the	Tribunal
resulted	in a situation where the workman was unab	le to

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defend		himself	effecti	vely. That submission was	accepted
by the		Supreme	Court.	In Capt. M. Paul Anthony	’s case,
the workma	n	had	been	unable to travel from his homet	own in
Kerala to		Kolar	Gol	d Fields in Karnataka where	the
disciplinary		enquiry	w	as convened on account of his	ill
health		and	financia	l difficulties. Both in	Fakirbhai’s
case as		well	as in	Capt. M. Paul Anthony’s case,	the
Supreme	C	ourt	noted	that no material had been	placed
before	th	e Cour	t to	show that the workman had	sufficient
means to		defend	himself.	In fact, in Paul Anthony’s	case,
the Sup	re	me Co	urt note	d that it was not suggested by	the
Respondent		that	the	Appellant had any other source	of
income.		Whether	the	non-payment of the	subsistence
allowance		will	result	in a disciplinary proceeding	being
vitiated		cannot	theref	ore be answered in the	abstract.
The law		is t	hat no	n-payment of subsistence allowance	would
result	in	the	invalidati	on of the proceedings where as	a
result	of	the	omission	of the management the employee	is
unable t	o	defend	himself	in the enquiry. Capt. M.	Paul
Anthony’s		case,	belong	s to the category of cases	where
prejudice		was	establish	ed because the employee was	unable
to trav	el	the	distance	between his hometown and the	place
where	t	he di	sciplinary	enquiry was convened on acco	unt of
non-payment		of	subsis	tence allowance. The	subsequent
Judgment	in	Indr	a Bhan	u Gaur’s case (Supra) therefore	does

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not	lay		down a	propo	sition	which is differen	t from		what
was	laid	down	in the	Judg	ments	of the Supreme	Court	in	the
earlier	C	ases.	The	sub	sequent	decision emph	asised	that	in
order		to en	able the	Cour	t to	hold that the	non-pa	yment	of
subsisten	ce		allowance		vitiated	disciplinary		proce	edings,
it	is	first	and fore	most	necess	ary for the	workman	to	set
up	the	plea	that	as	a result	he was either	not	in	a
position		to	participate	i	n a	proceeding or	to	effe	ctively
defend		them.	Preju	dice	either	in the form	of not		being
enable		to	participate	in	the	disciplinary pr	oceedings		or
of	som	e	other natu	re	has to	be specifically	pleaded		and
establish	ed.		The dec	ision	in	the Indra Bha	nu Ga	ur’s	case
therefore		laid	down	that	ther	e is no a	bsolute	prop	osition
in	law	th	at the	non	-payment	of subsi	stence	allo	wance
amounts		to	a deprival	of	an	opportunity so	as to		vitiate
the	discip	linary	proceedings.		The	Judgment in	U.P.		State

¶124

Textile Corporation has followed the same line of

¶125

reasoning.

¶126

In the present case, cognizance was taken by the Tribunal of the obstructive attitude that was adopted by the First Respondent during the disciplinary proceedings.

¶127

In paragraph 24 of its Judgment, the Tribunal held as

¶128

follows :-

¶129

:19:

¶130

"24. The various applications which I have indicated above show that the Appellant raised various objections on many occasions before the Inquiry Officer. in the first place he objected to the Venue of Inquiry. I cannot understand how a delinquent can raise such an objection. I have already dealt with this aspect. In my opinion this objection is a flimsy one. The Appellant also objected to the appearance of Mr. Netare. I have pointed out in this connection that he had no reason to raise any such objection. The Appellant wanted the Inquiry to be held in Marathi. The Inquiry Officer obliged him by conducting the proceedings in Marathi as well as in English. Strangely enough the Appellant had objections for this procedure also when he had no reason to do so. Though he claimed to be not well versed in English, he alleged that the translation of the Marathi evidence made by the Enquiry officer in English was wrong. Without any reason the Appellant did not attend the Inquiry Proceedings from 13.1.1983. He did not care to inform the Inquiry Officer as to why he was not attending the Inquiry. In the meanwhile he wrote applications after applications to various officials for changing the Inquiry Officer."

¶131

Again, in paragraph 41 of the Judgment, the

¶132

Tribunal held thus :-

¶133

"41.	I have	dealt with the att	itude of the
Appellant	because	on many gro	unds it is
alleged	that	the inquiry is	vitiated and
hence	question	of prejudice to	the Appellant
becomes	important.	While	considering the
question	of	prejudice it is	necessary to
consider	whether	the behaviour	of the
Appellant	justifies	the	inference of
prejudice.	If	delinquent is	bent upon
obstructing	the	Inquiry the	question of
prejudice	is to	be viewed in the	light of his
behaviour.		From the beginning	the Appellant
did	not want	the inquiry to be	conducted at
the	place where	it was being con	ducted. He
also	did not	want Mr. Netare	to present the

¶134

:20:

¶135

	case	for the Management. H	e wanted	that
	Inquiry Mr. made properly conducted obliged Inquiry boycotting courtesy from absent. to courtesy to boycott the	Officer should be some Vaze. Even though by him shows that he he insisted upon in Marathi. The him but even then h on some pretext or the the inquiry he did to inform the Enquiry a particular date he Even though by letter remain present he did not point out that he had decided to Inquiry."	one other the corre understands inquiry Enquiry e boycotted other. not have Officer would he was even have	than spondence English being Officer the Before the that remain asked the
16.	Fin	ally, it would be material to note that in the
concluding constrained	part of the to observe th	Judgment, the Tribunal was at the First Respondent herein
" had tried t	o obstruct the	enquiry at every stage."

¶136

17.	The	Pleadings of the First Respondent	before	the
Tribunal	would	assume signific	ance	particularly		having
regard	to	observations in the	recent	Judgments	of	the
Supreme	Court.	In paragraph 10	of	the memo	of	appeal

¶137

before the Tribunal, the First Respondent averred as follows :-

¶138

"10.	The	Appellant	says t	hat he attended for
inquiry	for	about 11	sittings,	but due to the
vindictive		and cri	minal attit	ude adopted by
the	represen	tative of	the	Respondent College,
Shri	V.K.	Netare	, in	collusion with the
inquiry	officer	Shri	V.R.	Vaze, as described
in	the	paragraphs	mentioned	below, it become
virtually i attend furth	mpossible er inquiry	for the Appellant proceedings."	to

¶139

:21:

¶140

The case of the First Respondent therefore was not

¶141

to th	e	effect that the non-payment of	the		subsistence
allowance	had	prejudiced him in the conduc	t of	the	defence
in the	discip	linary enquiry. The First	Responden	t	in fact
participated	in	the enquiry, attended 11	sit	tings	and
moved	sever	al applications before the Trib	unal to		which a
reference	has	been made in the Judgment	of the		Tribunal.
The	conduct	of the First Respondent was	recorded	both	by
the	Enquiry	Officer and by the Tribunal	as	obstru	ctive of
the	disciplin	ary proceedings. It would	also	be	necessary
to note	that	in grounds (9) and (10) of	the	m	emo of
Appeal,	the	enquiry proceedings were chall	enged	on	the
ground	of	non-payment of subsistence al	lowance.		However,
the F	irst	Respondent did not establish	any		prejudice
before	the	Tribunal on account of the no	n-payment	of	the

¶142

subsistence allowance for the period prior to November

¶143

1983 nor was there any pleading in support thereof.

¶144

At this stage, it would also be material to note

¶145

that it	was	the	case	of	the Managemen	t that	the	First
Respondent	was e	mployed	with	the	Bombay L	abour	Union.	The
Management	had	add	ressed	a	communication	on	31st	October
1981.	Before	the	Trib	unal,	the Man	agement	moved	an
application	for	the	issuance	of	a witness	summ	ons to	the
Secretary	of the	Bom	bay	Labour	Union for	the	production	of

¶146

:22:

¶147

the	cashb	ook	from	1981	-19	82,	the	ledger	for	the	years
1981-1983		and	the	names	of	the	per	sons	employed	by	the
Union.		The	First	Responde	nt	op	posed	the	appli	cation.	The
Tribunal	by	its	order	dated		20th	A	ugust	1986	postponed	the
decision		on	the	applicat	ion	un	til	after	the	evidence	of
the	First	Resp	ondent	was	o	ver.		The	Court	has	been

¶148

informed that ultimately no further steps were taken

¶149

thereon.

¶150

20.		Having	regard	to	all		these	facts	and
circumstance	s,	it	is	impossible to	subs	cribe	to	the		view
of	the	Tribun	al t	hat the disci	plinary		enquiry	wo	uld	stand
vitiated	as	a	res	ult of non-paym	ent	of	the		sub	sistence
allowance	to	the	F	irst Respondent.		No	such		plea	of
prejudice	w	as	taken	before the	Tribu	nal	and	even		before
this	Court,	no	such	submission has	been		urged.	In		these
circumstance	s,	the	order	of the Trib	unal	in	so	far	as	it
held	that	the	enquiry	was vitiated	only	o	n the	gro	und	of

¶151

non-payment of subsistence allowance will have to be

¶152

quashed and set aside.

¶153

21.	The ch	arges agai	nst the F	irs	t Respond	ent were
serious	in nat	ure.	The		Tribunal	has held	that	those
charges,	that is	charges	2,	6	and	7 which have	been	held
to	be proved	are	serious		enough	to sustain	the	punishment

¶154

:23:

¶155

of	di	smissal. That	part of t	he	finding	has		not	been
challe	nged	before	this Court	by the		First		Resp	ondent.
There		could be no	dispute about	the	principle	of		the	law
that		in the	exercise of the	jurisdict	ion o	f	th	e	Court
under		Article 226	of the Cons	titution	of	India	,	the	Court
would		not re-appreciate	evidence or	sub	stitute	the		view	of
the	Trib	unal for a	view which app	ears t	o the	Co	urt	be	more
reason	able	in the	case. The	finding	of	the	Tri	bunal	to
the		effect that	the enquiry st	ood	vitiated	is		ex-facie	an
error		apparent on	the face of t	he rec	ord.	T	he	findin	g is
not	c	onsistent with	the law laid	down	by		the	S	upreme
Court.		A case	for interference	under	A	rticle		226	is
therefo	re	clearly made	out. The	inter	ference	of		the	Court
is	also	necessary in	order to p	reserve	the	sanc	tity	of	the