Naseer Babasaheb Jahagirdar v. John Wilson Education Society

1. Rule. Rule made returnable forthwith and taken up for final hearing with the consent.

2. The Petition challenges the order dated 23rd March, 2022 passed by Presiding Officer, Mumbai University and College Tribunal in Appeal No. 10 of 2015 dismissing the Appeal filed by the present Petitioner under Section 59 of the Maharashtra Universities Act, 1994 against the order of his removal dated 17th August, 2015 passed after an ex-parte inquiry.

3. The facts required to be exposited are that the Respondent No. 1 is the registered trust and the Society which runs Respondent No. 3- Wilson College, which is affiliated to Respondent No. 4-University of Mumbai. The Petitioner was appointed in the year 2005 in Respondent No. 3-College as full-time Assistant Professor in Biotechnology and was absorbed in the aided course in December, 2007. The show-cause notice came to be issued on 25th January, 2014, to which response was filed on 30th January, 2014. The Board of Management of Wilson College took a decision in its meeting held on 4th March, 2014, to appoint Shri. V. N. Malya as Inquiry Officer to conduct the inquiry into conduct of the Petitioner in accordance with the provisions of the University of Mumbai Statutes and other applicable rules and to submit the report. The chargesheet was served on Petitioner on 15th April, 2014 alleging misconduct under Statute 439D (a), moral turpitude under Statute 439D (b) and willful and persistent negligence of duty under Statute 439D(c). In response to the chargesheet and the statement of allegations, Petitioner addressed a communication to the Respondent Nos. 1 and 2 stating that the show cause notice issued by Mr. Malya is not on any institutional letterheard and there is no authorisation and asked for authentication of Mr. Malya. The Petitioner did not participate in the inquiry and the inquiry proceeded ex-parte. On 6th May, 2015, the Inquiry Officer submitted the report to Respondent No. 2 to which the Petitioner submitted his explanation and the Petitioner submitted his on 2nd June, 2015 pointing out Statute 444(c) which provides for the governing body to appoint the Inquiry Officer. The Respondent No. 2 i.e. the Board of Management of Wilson College decided to terminate services of the Petitioner and vide order dated 12th August, 2015, the penalty of removal from services of Wilson College was passed. The termination was challenged before the Tribunal by way of Appeal No. 10 of 2015, which came to be dismissed by the impugned order.

4. Mr. Limaye, learned counsel appearing for Petitioner would mount a singular challenge as to the defect in the appointment of Inquiry Officer. He submits that under Statute 444 read with Statute 409 provides that where the Principal decides to hold an inquiry into the alleged conduct of the teacher after holding preliminary investigations, it is the Governing Body which is required to appoint an Inquiry Officer. He would further point out that Statute 409 (xvi) defines “Governing body” to mean a body which actually conducts the affairs of college and which is recognised by the University as Employer. He submits that in the present case, it is the Respondent NO. 2-Management of College which appointed the Inquiry Officer and therefore, the inquiry was vitiated.

5. He submits that the Respondent No. 4-University had filed an Affidavit before the College Tribunal through the Deputy Registrar stating that as per the records maintained by Respondent-University, the governing body of Wilson College is John Wilson Education Society, i.e. Respondent No. 1 and not the Board of Management of Wilson College. He would further submit that the fact that Respondent No. 1 subsequently ratified the act of Respondent No. 2 lends credence to the fact that Respondent No. 2 could not have appointed an Inquiry Officer. He would further submit that the College Tribunal has erroneously considered that under Clause 5 of Memorandum of Association, the Society had the power to appoint or dismiss the Principal whereas under Clause 32, the College Board to confirm and remove the professors, lecturers and other staff of the College. He submits that the College Tribunal has misinterpreted Statute 444(c).

6. Per contra, Mr. Masih, learned counsel appearing for Respondent would submit that by virtue of Statute 444(c) which deals with appointment of Inquiry Officer, the Chairman of the Governing Body of the College may suspend the teacher or Professor pending inquiry. He would further submit that Memorandum of Association authorized the management of the College to appoint and remove the Professor and non-teaching staffs. He submits that the Memorandum of Association gives an authority to management of the college to appoint an Inquiry Officer and the governing body is defined as a body which actually conducts the affairs of the college. He draws support from the decision of this Court in the case of The Secretary, John Wilson Education Society, Wilson College, Mumbai and Another vs. Sanjay Premanand Athavale and Another[1].

7. I have considered the submissions and perused the record.

8. There is no submission canvassed on merits and the only issue arising for consideration is whether the appointment of inquiry officer was defective vitiating the inquiry. Admittedly, the Inquiry Officer was appointed by the Board of Management of Wilson College. The relevant Statute 444 reads as under:- “Where the Principal decides to hold an enquiry into the alleged conduct of the teacher after holding preliminary investigations, the Governing Body shall appoint an Enquiry Officer. It is to be noted that the

1 Writ Petition No. 1189 of 2016, decided on 5th October, 2016. Chairman of the Governing Body of the College may suspend the Principal or teacher pending enquiry if he is satisfied that there is a prima facie case for suspension and shall report the matter to the University.”

9. The Statute provides that where the Principal decides to hold an inquiry into the conduct of the teacher, it is the Governing Body who shall appoint an Inquiry Officer. Governing Body is defined in Statute 409, which reads as under:- “(xvi) ‘Governing Body’ means a body which actually conducts the affairs of a college and which has been so recognized by the University for the purpose of these Statutes as Employer.”

10. Read conjointly, the Statutes provides for appointment of Inquiry Officer by the Governing Body which means a body which actually conducts the affairs of the college and is recognised by the University as Employer for purpose of these Statutes. As per the definition for a body to constitute a Governing Body, not only the body should actually conduct the affairs of the College but should also be recognized by the University for the purpose of these Statutes as Employer. The use of the word “and” in the definition indicates that the first part and the latter part are conjunctive and not disjunctive.

11. An Affidavit had been filed by the Deputy Registrar of Respondent No. 4-University in an application in the Appeal before the College Tribunal. The Affidavit was filed to oppose the Petitioner from bringing on record a communication dated 17th May, 2017 of the University’s department to the Secretary of the Society. The Affidavit makes interesting reading and states that the said communication was issue in case of termination of another employee of the Respondent- Society asking the Society to intervene in matter of illegal suspension since Statute 444 prescribes the Governing Body to be appropriate authority to hold an inquiry by appointing an Inquiry Officer, which in that case was also done by the Board of Management. The Affidavit specifically states that as per the records maintained by the Respondent-University, the Governing Body of Wilson College is John Wilson Education Society and not the Board of Management of Wilson College. It is stated that the said communication was issued after it was brought to their notice the conduct of illegal inquiry proceedings.

12. The Respondent No. 4-University has stated in unequivocal terms that the Governing Body is the Respondent No. 1-Education Society as per the Statute. The College Tribunal misinterpreted Statute 409(c) and in view of Clause 32 and Clause 5 of the Memorandum of Association which provided for the College Board to appoint and remove the Professors and for the Society to appoint and dismiss the Principal to held that the Wilson College is the Governing Body with respect of appointment and removal of Professors. Whilst interpreting Statute 409(c), the College Tribunal has considered only the first part of the definition of Governing Body as regards the conduct of affairs of the College overlooking the second part which requires such body to be recognised by the University as Employer. Pertinently, it is the management of College which has passed the termination order and considering Statute 409, it is the Governing Body of the Respondent No 1 which is recognised as the employer and could have imposed the penalty of removal from the service. The subsequent ratification of penalty of removal by the Respondent No 1 indicates that the Respondent No 1 was aware that it is the Respondent No 1 which is the Governing Body for the purposes of Statute 444.

13. While appointing the Inquiry Officer by communication of 14th March, 2014, the Respondent No. 2-Management of the Wilson College had requested the Inquiry Officer to conduct the inquiry according to the provisions of University of Mumbai Statute. The decision in the case of The Secretary, John Wilson Education Society, Wilson College, Mumbai and Another vs. Sanjay Premanand Athavale and Another (supra) was in the context of inquiry held under Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The MEPS Rules being inapplicable to the present case, the said decision is rendered in different factual scenario and will not apply in the present case.

14. In light of above discussion, there was defect in the appointment of Inquiry Officer which vitiated the Inquiry. The impugned order is unsustainable and is hereby quashed and set aside. Resultantly, the termination of the Petitioner is set aside. No relief of backwages can be granted as the Petitioner was gainfully employed during the intervening period.