Dismissed

Dr.Dilip N.Mahadik v. Akhtar Rizvi and Ors.

Bombay HC5 Jul 2006WP/508/1997

Case brief

AI extract

What is this about?

The petitioner challenged his dismissal by a College Tribunal, claiming the University, not the employer, had authority over exam-related lapses. The High Court held that examining is part of a teacher's compulsory duties, so negligence reflects on their service reputation, justifying employer punishment.

What did the court decide?

Petition dismissed; rule discharged with no order as to costs.

Dr.Dilip N.Mahadik Vs Akhtar Rizvi and Ors. — Property and Title | 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.508 OF 1997

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 Dr.Dilip N. Mahadik ...Petitioner

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 v/s.

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 1.Akhtar Rizvi & ors. ...Respondents

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 Mr.S.J.Deshmukh i/b N.M.Ganguli for the Petitioner.

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 Mr.G.S.Hegde with Mr.M.J.Shetty for Respondents Nos.

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 1 & 2.

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CORAM: D.K.DESHMUKH, J.
DATED:5TH JULY, 2006

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P.C.:

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 1. By this petition the Petitioner challenges the
 order passed by the Presiding Officer, University and
 College Tribunal dated 24-12-1996. That order was
 passed in Appeal No.20 of 1995. That appeal was
 filed by the present Petitioner, under the provisions
 of Section 50 of the Maharashtra Universities Act.
 In that appeal the Petitioner challenged the order
 dated 21-6-1995 served on him on 29-6-1995 dismissing
 him from service. The order of dismissal was made
 consequent upon holding a departmental inquiry
 against the Petitioner. Before dismissal from
 service, the Petitioner was working as full time
 Lecturer in Zoology in the college of the Respondents
 from 20-6-1987. During the pendency of the
 departmental inquiry the Petitioner was placed under
 suspension with effect from 20-6-1995. A charge
 sheet was served on the Petitioner. Charges levelled
 against the Petitioner which have been held to be
 proved mostly related to his conduct as an examiner
 during the examination held during the year 1991-92.
 The College Tribunal in its exhaustive and detail

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 order has referred to the facts which lead to the

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 departmental inquiry and has considered charges
 levelled against the Petitioner in detail. Perusal
 of the order of the Tribunal shows that the Tribunal
 has considered each of the charges that were levelled
 against the Petitioner. Perusal of the judgment of
 the College Tribunal shows that charges that are
 found to have been proved against the Petitioner are
 relating to utter negligence in assessing the
 answer-books of the examination which appears to be
 the examination held by the University through the
 college. In paragraph 40 of the order, the College
 Tribunal has noted that so far as allegation relating
 to examination are concerned, the Petitioner has
 accepted the lapses committed by him. The lapses,
 which according to the College Tribunal have been
 accepted by the Petitioner in relation to the
 examination, include not signing the answer-books,
 allotting marks to a student who was absent for the
 papers, mentioning wrong marks on the first page of
 the answer-book, etc. The lapses are many. The
 College Tribunal has found that the Petitioner has
 not carried out his work as an examiner diligently
 and he was negligent in the performance of his
 duties. The College Tribunal has also considered the

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 submissions made on behalf of the Petitioner that as
 these lapses are found to have been committed by the
 Petitioner while working as an examiner in the
 examination conducted by the University and as the
 University has laid down rules, which is a Code
 complete in itself for the conduct of the examination
 as also for imposing punishment on the examiner the
 management can not impose punishment. The College
 Tribunal has,however, found that though the lapses
 are committed by the teacher concerned, while working
 as an examiner, the Management can still punish him
 for the same lapses because he is appointed as an
 examiner basically because he is a teacher. The
 College Tribunal has referred to provisions of
 various statutes on the subject. The College
 Tribunal has also considered the question whether the
 punishment imposed can be termed as excessive or it
 is commensurate with the misconduct of which the
 Petitioner has been found to be guilty.

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 2. The learned Counsel appearing for the Petitioner
 referred to various provisions of the Bombay
 University Act and submitted that power to conduct
 examination has been conferred by the University Act

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 on the Bombay University. He submits that power to
 frame statute is also conferred on the University and
 in exercise of those powers the University has framed
 various statutes for the purpose of conducting
 examination. The learned Counsel referred to the
 Rules for conducting of First Year and Second Year
 B.A., B.Com. B.Sc. examinations by the constituent
 College of Arts, Science and Commerce. He also
 submits that the University has framed detail rules
 in relation to the conduct of these examinations,
 which include the rules providing for appointment of
 examiner, how question-papers are got set by the
 teacher, how examination is to be conducted and how
 the answer-books are to be got evaluated. The
 learned Counsel submits that the University has made
 detail provision as to what punishment is to be
 imposed on an examiner, if he is found to have not
 carried out his duty as examiner properly. The
 learned Counsel submits that power is vested in the
 Rules on the University to impose various types of
 punishment for various types of misconduct committed
 by the examiner concerned. According to the learned
 Counsel that because holding of examination is a job
 entrusted to the University by statute and the
 University in exercise of its power confer on it by

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 the University Act framed various sub-ordinate
 legislation for the conduct of that examination and
 has made a detailed provision therein for imposition
 of various penalties for various different kinds of
 lapses committed by the examiner, the College
 Management does not have the power to take action
 against the concerned examiner, who happens to be an
 employee of that College, for his acts of negligence
 etc. as an examiner.

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 3. The learned Counsel relies on the judgment of the
 Supreme Court in the case of A.L.Kalara v/s. The
Project and Equipment Corporation of India Ltd., AIR
1984 SC1361 to contend that when an employee is to
 be punished for a misconduct, firstly that misconduct
 should be clearly spelt out in the service rules and
 secondly that misconduct should be clearly spelt out
 in the charge sheet that is served on the employee.
 On the basis of vague allegation made against an
 employee, an employee cannot be punished. The
 learned Counsel also relies on the judgment of the
 Supreme Court in the case of Rasiklal Vaghajibhai
Patel v/s AhamadabadMunicipal Corporation , AIR 1985
SC 504. The learned Counsel relying on these
 judgments submits that any vague or undefined act

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 which from the employer point of view may be
 misconduct, but for that an employee cannot be
 punished unless such act is defined as misconduct in
 the relevant service rules. The learned Counsel also
 relies on the judgment of the Supreme Court in the
 case of Punjab Land Development and Reclamation
Corporation Ltd. Chandigarh v/s. Presiding Officer,
Labour Court, Chandigarh and ors, (1990) 3 SCC 682,
 to contend that any judgment to operate as precedent
 has to be read as a whole and only the question which
 has been decided by that judgment constitutes a ratio
 of the judgment and any casual observations made in
 that judgment do not constitute ratio.

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 4. I have also heard the learned Counsel appearing
 for the Respondents.

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 5. The Petitioner has filed this petition under
 Article 226 of the Constitution of India challenging
 the order passed by the College Tribunal. Obviously,
 the Petitioner is claiming a writ of certiorari in
 this petition. It is a settled law that under
 Article 226 of the Constitution, the High Court can
 issue a writ of certiorari to correct an error
 apparent on the face of the record. In exercise of

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 its jurisdiction to issue writ of certiorari the
 court can not reappreciate the evidence on record and
 reopen the findings of fact which have been recorded
 by the Tribunal. In so far as the present case is
 concerned, the College Tribunal has held that the
 misconduct, on the basis of which the Petitioner has
 been punished, has been admitted by the Petitioner.
 Before me also there was no attempt made to dispute
 that the Petitioner has committed the acts which have
 been termed as misconduct by the Management. The
 only question which was urged before me was that
 because the acts of the Petitioner, which according
 to the Management/Employer of the Petitioner amount
 to misconduct are in relation to the examination
 which was conducted by the University, therefore the
 Management cannot impose punishment on the basis
 those acts. Perusal of the provisions of the Bombay
 University Act as also the rules framed by the
 University shows that the University has framed a
 detailed scheme for conducting examination. Perusal
 of that scheme shows that the scheme makes it
 compulsory for a teacher working in affiliated
 college to work as an examiner in the examination
 conducted by the University. Therefore, it is clear
 that the basic character of the examiner appointed by

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 the university is that he is a teacher working either
 with the University or with a college affiliated to
 the University. When the University frames the
 scheme for the conduct of the examination and when it
 makes provisions for imposing punishment on the
 examiner by the University, in my opinion, it does
 not take away the power of the employer to punish his
 employee if his conduct as an examiner also amounts
 to misconduct within the meaning of the statute,
 which govern the conditions of service of the
 teachers working in the affiliated college. It is to
 be noted that in relation to a teacher who is in the
 service of a affiliated college and who is appointed
 as an examiner, the University is not his employer,
 therefore, the punishment to be imposed by the
 University that may be prescribed by the scheme
 framed by the University in relation to the examiner
 cannot prescribe a punishment of dismissal or
 reduction in rank or removal from services of the
 teacher. Therefore, maximum that such Rules can
 provide is that he can be debarred from being an
 examiner in future. But if the conduct of the
 teacher even while working as an examiner amounts to
 misconduct within the meaning of the statute, which
 governs his conditions of services as an employee in

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 an affiliated college, I do not find anything in law
 which prevents the Management from imposing
 punishment for such misconduct.

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 6. An employer may not be able to punish his
 employee for a conduct which is totally unconnected
 with the nature of the duties to be performed by the
 employee, but if there is reasonable connection
 between the duties as an employee and the capacity in
 which the act is committed the employer can
 definitely punish the employee. In so far as the
 present case is concerned, there is definite
 connection between the status of the Petitioner as a
 teacher in the college which is affiliated to the
 University and his status as the examiner appointed
 by the University. Statute 439-B lays down "A

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 teacher shall perform his academic duties and work
 related to examinations as assigned". Rules framed
 by the University in relation to the conduct of the
 examiner, which have been annexed by the Petitioner
 at Exh.D to the petition also lays down "The work
 relating to the examination will be compulsory for

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 the teaching and non-teaching staff of the college

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 and teaching and non-teaching staff of the
 Directorate of Distance Education." Therefore, the

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 work assigned by the University as an examiner to a

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 teacher working in an affiliated college is
 compulsory. Therefore, working as an examiner at the
 examination conducted by the University is a part and
 parcel of the duties of the teacher working in the
 affiliated college. Therefore, there is definite
 connection between the duties of the teacher in the
 affiliated college and the duties of the examiner
 appointed by the University. Therefore, it cannot be
 said that the acts which are attributed to the
 Petitioner as an examiner are totally unconnected
 with his duty as an employee of the management. It
 is further to be seen here that statute 439-D lays
 down that various major penalties can be imposed on
 an employee for misconduct. The statute gives an
 inclusive definition of the term "misconduct" and the
 violation of the Code of Conduct has been included in
 the definition of the term "misconduct". One of the
 Code of conduct laid down by the statute 439-B is for
 a teacher to do work related to examination.
 Therefore, if a teacher is guilty of an act of
 dereliction of duty as an examiner, he would be
 acting in violation of the Code of Conduct and if he

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 is violating the Code of Conduct, it would amount to
 misconduct. At this juncture, reference can usefully

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 be made to a judgment of the Supreme Court in the

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 case S.Govinda Menon Vs. Union of India and anr.,
AIR 1967 SC 1274. In that case the appellant was a
member of the Indian Administrative Services. He was
holding a post of Commissioner ofHindu Religious and
 Charitable Endowments. There were allegations of
 mis-conduct against the appellant in discharge of his
 duties as Commissioner. The question that was
 considered by the Supreme Court was whether the acts
 which were found to be mis-conduct attributed to the
 appellant were committed by him while acting in his
 capacity as Commissioner and therefore, the
 Government had no jurisdiction to take disciplinary
 proceedings. The Supreme Court in paragraph (6) of
 the judgment has observed thus:-

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 ....To put it differently, the test is not
 whether the act or omission was committed by
 the appellant in the course of the discharge
 of his duties as servant of the Government.
 The test is whether the act or omission has
 some reasonable connection with the nature and
 condition of his service or whether the act or
 omission has cast any reflection upon the
 reputation of the member of the Service for

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 integrity or devotion to duty as a public
 servant. We are of the opinion that even if
 the appellant was not subject to the
 administrative control of the Government when
 he was functioning as Commissioner under the
 Act and was not the servant of the Government
 subject to its orders at the relevant time,
 his act or omission as Commissioner could form
 the subject-matter of disciplinary proceedings
 provided the act or omission would reflect
 upon his reputation for integrity or devotion
 to duty as a member of the Service.

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 Thus, the Supreme Court has held that if the act has
 reasonable connection with the nature and condition
 of the services and if the act reflects upon the
 reputation or devotion to the duties of the employee
 though there may not be master and servant
 relationship in existence between the parties when
 the act was committed, still the employer can take
 disciplinary action against the member. In the
 present case the acts which have been found to be
 mis-conduct were committed by the petitioner while
 working as examiner but he was appointed as examiner
 because he was a teacher in the affiliated college.

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 Therefore, there is reasonable connection between his

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 being as examiner at the examination of the

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 University and the status as a teacher in the
 affiliated college, and he has been found to be
 utterly negligent in performing his duties as
 examiner. It definitely reflects upon his reputation

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 and devotion to his duties. In my opinion,
 considering that the petitioner was in service as a
 teacher and the high status which the teacher is
 holding in the Society, the observations of the
 Supreme Court in its judgment in the case Daya

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Shankar v/s. The High Court of Allahabad and ors.,

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AIR 1987 SC 1469, are relevant. In that case the

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 petitioner was a member of U.P. State Judicial
 Services. He was permitted by the High Court to

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 appear for LL.M. examination. While he was

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 appearing in LL.M. Examination, he was found to be

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 using unfair means and because he was found to be

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 using unfair means at the university examination, he
 was dismissed from the services by the High Court.

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 The contention urged before the Supreme Court was
 that he was found to have used unfair means in the
 examination, that has nothing to do with his duties
 and the status as a judicial officer, and therefore,
 for that act the High Court could not have dismissed

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 him from the service. In this background the Supreme
 Court in paragraph 11 of the judgment has observed
 thus:-

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 11. In our opinion the conclusion reached by
 the Inquiry Officer that the petitioner used
 unfair means is fully justified. No amount of
 denial could take him away from the hard facts
 revealed. The conduct of the petitioner is
 undoubtedly unworthy of judicial officer.
 Judicial officers cannot have two standards,
 one in the Court and another outside the
 Court. They must have only one standard of
 rectitude, honesty and integrity. They cannot
 act even remotely unworthy of the office they
 occupy. The second contention urged for the
 petitioner also fails and is rejected.

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 In my opinion, the above observations of the Supreme
 Court apply with full force in the present case. So
 far as the position of a teacher in the Society is
 concerned, the Supreme Court has considered it in its
 judgment in the case of Sanchalakshri Vs. Vijaykumar
Raghuvirprasad Mehta and anr., AIR 1999 SC 578. The
 Supreme Court in paragraph 6 of the judgment has

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 observed that a teacher is expected to maintain high
 standard of honesty and integrity in view of the
 position that he holds. Therefore, for any
 misdemeanour which has reasonable connection with the
 duties as a teacher the management would be justified
 in imposing punishment.

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 7. I find that the College Tribunal has passed a
 detailed order and has given reasons in detail for
 the findings recorded by it. After having gone
 through the findings recorded by the College
 Tribunal, I do not find that any material which was
 relevant has been excluded from consideration by the
 College Tribunal or that it has considered any
 material which was irrelevant. The findings recorded
 by the College Tribunal by no stretch of imagination
 can be termed as perverse or suffering from
 non-application of mind. Even the conclusions that
 has been reached by the College Tribunal are possible
 conclusions to be reached on the basis of material on
 record. It cannot be said that the conclusions which
 is reached by the College Tribunal are impossible,
 and therefore, in my opinion, it will not be
 appropriate for this court to interfere with the
 order passed by the College Tribunal in exercise of

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 its extra ordinary jurisdiction under Article 226 of
 the Constitution. Petition, therefore, fails and is

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 dismissed. Rule discharged with no order as to

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 costs.

Dr.Dilip N.Mahadik v. Akhtar Rizvi and Ors.

Case brief

What is this about?

What did the court decide?

Dr.Dilip N.Mahadik v. Akhtar Rizvi and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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