1. Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.

2. The present petition is filed challenging resolution item No.57, dated 27.03.2024, passed by the Management Council of the respondent No.1 University. By way of said resolution permission for terminating the services of the respondent No.3 as an Assistant Professor in Chemistry in the College as required under statute No.53 has been rejected.

3. Facts can be seen from the petition are as under :

The respondent No.3/delinquent was appointed as an Assistant Professor in Chemistry in Jagadamba College of Engineering and Technology on 21st June, 2016. The said College is established by the petitioner Society and is a private unaided College affiliated to the respondent No.1 University.

4. On 25th December, 2020 the said respondent No.3 left the College at 1:30 p.m. without any intimation and permission. Hence, notice was issued by the Principal to the respondent No.3 since it was an exam period and the entire staff was supposed to be present in the college, even on holidays.

5. Thereafter, on the next day, i.e. 26.12.2020, the respondent No.3 attempted suicide in Chemistry laboratory in the afternoon at about 1.00 p.m. He carried out video recording of a statement in standing position alleging that he was going to commit suicide and the Secretary and the Principal would be responsible for suicide. After video recording the entire statement, the respondent No.3 forwarded the same to all groups of employees on WhatsApp as also students news, reporters, electronic media, University officials, and Police officers etc.

6. Two other employees rushed to the Chemistry laboratory, removed the side rope and brought the respondent No.3 out of the side laboratory. Due to such incident, the petitioner Management decided to conduct an enquiry against the respondent No.3. Accordingly, he was served with a charge-sheet on 11.1.2021 and an independent Enquiry Officer was appointed. In the enquiry which ensued, it is the contention of the petitioner that the respondent No.3 was granted fair opportunity to defend himself. The Enquiry Officer submitted a report on 30th September, 2021, holding that the charges were proved in view of the convincing evidence and material admissions of the respondent No.3.

7. A copy of enquiry report was forwarded to the respondent No.3 and he was asked to show cause and submit his explanation. The respondent No.3 submitted an explanation on 16.10.2021. The Managing Committee of the petitioner Society passed a resolution on 22nd October, 2021, proposing the punishment of termination from service. Accordingly, notice was issued on 23rd October 2021 to which the respondent No.3 submitted an explanation on 10th November, 2021.

8. It is further stated in the petition that as per the provisions of Ordinance No.24 and Statute No.53 of the University, there is a statutory requirement of prior permission of the Management Council of the University before issuing order of termination. In accordance with the said provision, the petitioner No.1 submitted a proposal on 18th November, 2021 to the respondent University seeking grant of permission to terminate the services of the respondent No.3 for proved misconduct.

9. The Management Council appointed a sub-committee of the Members of the said Council who visited the College and conducted a hearing. The said sub-committee submitted a report on 26.4.2022 and recommended for grant of permission to terminate the respondent No.3.

10. The action of the Management Council appointing a sub-committee, according to the petitioner was without jurisdiction. The order, therefore, was challenged before this Court by filing a petition bearing Writ Petition No.6063 of 2022. In the said matter the University made a statement that the proposal of the petitioner shall be decided by the Management Council and the said petition was accordingly disposed of. However, thereafter on 24.7.2023 the Management Council rejected the proposal of the petitioner. This prompted the petitioner to challenge the same before this Court in petition bearing Writ Petition No.6910 of 2023. This Court by judgment dated 27th February, 2024 quashed and set aside the resolution of the Management Council and relegated the matter to the said Council for a fresh decision.

11. Accordingly, the matter was again placed for consideration before the Management Council in the meeting held on 27.3.2024. It is the specific case of the petitioner that the agenda of the said meeting of the Management Council held on 27th March, 2024 had enclosure of 42 pages only. It is, therefore, the contention of the petitioner that the proposal of the petitioner was of 219 pages and therefore it is obvious that the same was never placed before the Management Council. In the light of these facts, the resolution impugned in the petition was passed on 27.3.2024 rejecting the proposal of the petitioner Society which sought permission to terminate the services of the respondent No.3. It is this action as stated above is challenged in the present petition.

12. I have heard Mr.B.G. Kulkarni learned counsel for the petitioner, Mrs. Gouri Venkataraman learned counsel for the responded No.1 and Mr. Mir Nagman Ali, learned counsel for the respondent No.3.

13. The learned counsel for the petitioner has took me through the entire record of the matter and states that the action of the Management Council of the respondent No.1 University is totally illegal and contrary to the settled principles of service jurisprudence. By taking me through the enquiry report submitted by the Enquiry Officer, the learned counsel for the petitioner submits that the Management Council of the respondent No.1 University has committed a grave error of law in rejecting the proposal. He submits that the resolution dated 27.3.2024 records a reason that the punishment inflicted by the Management is shockingly disproportionate to the charges levelled against the employee i.e. respondent No.3. He also points me out that the resolution further mentions that the written notes of arguments by the respondent No.3 have not been considered by the Enquiry Officer.

14. By rebutting the said reasons point by point, learned counsel for the petitioner submits that the said have been recorded on the basis of assumptions and presumptions and without verifying the enquiry report and the other documents. As far as reason regarding the punishment of termination being shockingly disproportionate, the counsel submits that the concerned employee has indulged in an act which is forbidden by law and unbecoming of a Teacher and that too, in the premises of the educational institution. He, therefore, submits that in no manner it can be said that the punishment of termination was shockingly disproportionate.

15. Alternatively, he submits that it is a settled principle of law that it is the absolute right of an employer to conduct an enquiry against its employees in accordance with the rules in vogue and inflict punishment accordingly. He further submits that the perusal of the enquiry report would convincingly established that the charges were proved on the basis of conclusive and strong evidence. He submits that the petitioner Management had lost confidence in the employee and therefore it was correctly proposed that the services of the said employee would be terminated. He further submits that there is no finding in the impugned resolution that there is any defect in the process and procedure of enquiry and therefore the Management Council of the respondent No.1 University ought not to have refused approval for the proposed termination.

16. He also submits that looking to the scheme of Ordinance No.24 and Statute No.53, it can be seen that the Management Council of the University cannot in any manner assumed itself to be an Appellate Authority because the employee who is aggrieved by any action taken by the Management has a right of appeal under section 81 of the Maharashtra Public Universities Act, 2016 to challenge the same. It is thus submitted that since a judicial forum is created to challenge, order of termination/removal/dismissal, the same would be necessarily out of the scope and ambit of the Management Council of the respondent No.1 University.

17. He draws support from the following judgments of the Hon’ble Apex Court in support of his contention.

                   (i) (1997) 2 SCC 534 (Arinash Nagara Vs. Navodaya Vidyalaya Samiti.

                   (ii) Judgment of the Hon’ble Supreme Court dated 22.9.2026 in the case of Sushmita Basu and others Vs. Ballygunge Siksha Samity and others i.e. Civil Appeal No.1468 of 2005.

                   (iii) Judgment of the Hon’ble Supreme Court in the case of M.M. Malhotra Vs. Union of India and others, (2005) 8 SCC 351.

                   (iv) Judgment of the Hon’ble Supreme Court in the case of M.H. Devendrappa Vs. Karnataka State Small Industries Corporation (1998) 3 SCC 732.

                   (v) Judgment of the Hon’ble Supreme Court in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya (2011) 4 SCC 584.

                   (vi) Judgment of the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Ram Singh (1992) 4 SCC 54.

As far as scope of judicial review, in the actions of such nature, Mr B.G. Kulkarni, learned counsel draw support from the following judgments.

                   (i) Judgment of the Hon’ble Supreme Court in the case of Union of India Vs. P. Gunasekaran (2015) 2 SCC 610.

                   (ii) Judgment of the Hon’ble Supreme Court in the case of Balaji vs. Enquiry Officer, 2011 (6) Mh.L.J. 599

                   (iii) Judgment of the Hon’ble Supreme Court in the case of S.B.I. Vs. Ramlal (2011) 10 SCC 249

                   (iv) Judgment of the Hon’ble Supreme Court in the case of State of Karnataka and another Vs. Umesh, (2022) 6 SCC 563.

18. Learned counsel for the respondent No.1 University, Mrs. Gouri Venkatraman specifically refutes each and every allegation of by her opponent. By taking me through affidavit in reply filed by the University, it is her submission that a conscious subordinate legislation has been framed in the form of Statute and Ordinance referred to supra to provide safeguard to teachers working in colleges affiliated to the University and to protect them from any arbitrary actions of the Private Management. She submits that the said view has been crystallized in Full Bench judgment of this Court in Writ Petition No.2057 of 2020 (Citizen Education Society Vs. Dhananjay Ambadas, Dhabi and others). She further submits that bare perusal of the impugned resolution dated 27.03.2024 would reflect that the Members of the said Council had found certain issues for consideration and after the scrutiny of the material, the issue was put to vote. 8 out of the 15 members voted to reject the proposal and 3 Members voted otherwise. It was therefore by majority decided that the proposal sent by the petitioner Management to terminate the services of the respondent No.3 should be rejected. As far as not placing of the entire enquiry report before the Management Council is concerned, the learned counsel submits that the same is incorrect, and in fact, the entire enquiry report was before the Council to enable it to reach a decision.

19. Mr. Mir Nagma Ali, learned counsel for the respondent No.3 also supports the impugned resolution. He submits that the Secretary of the petitioner Management is having some grudge against the respondent No.3 and used to harass him on the said count. By drawing my attention to the affidavit in reply filed by the said respondent, the learned counsel submits that the Secretary used to find fault in working of the said respondent for no reason and therefore was looking for an opportunity to somehow implicate and get rid of him. Various allegations are made in the said affidavit in reply as has been pointed out by the counsel for the respondent No.3.

20. With the assistance of the learned counsel for the respective parties, I have gone through the record of the matter and also appreciated their rival contentions.

21. As can be seen from the record of the matter the factual aspects as stated supra are not in dispute. The fact that the respondent No.3 being an employee of the College is sought to be terminated after completion of a departmental enquiry in which charges are held to be proved is not in dispute. It is also not disputed that earlier also the Management Council of the respondent No.1 University has refused to grant approval to the termination which prompted the petitioner to approach this Hon’ble Court by filing petitions as mentioned above. The moot question which needs to be decided in the present matter is the scope and ambit of clause 8 of Ordinance No. 24 with Statute 53 of the Management Council of the respondent No.1 University. For the sake of brevity the said clauses are reproduced as under :

                   “8. After confirmation the services of the party of the first part can be terminated only on the following grounds:-

                   (a) Wilful and persistent neglect of duty,

                   (b) Misconduct,

                   (c) Breach of any of the terms of the contract,

                   (d) Physical or mental unfitness,

                   (e) Incompetence,

                   (f) Abolition of the posts.

                   Provided firstly, that the plea of incompetence shall not be used against the party of the first party after he has served the part of the second part for five years or more.

                   Provided secondly, the services of the party of the first part shall not be terminated under clause (c) or (1) without the previous approval of Amravati University.”

22. It is also not in dispute that even though clause 8 reproduced supra encompasses only sub-clause (c) & (f) by virtue of second proviso, the parties are ad idem that the said clause 8 would also apply for sub-clause (b) i.e. for misconduct. The same is in view of authoritative pronouncement of Full Bench this Court in judgment dated 20th February, 2023, in Writ Petition No.2057/2020. Thus, it is clear that even for misconduct previous approval of the Management Council of the respondent No.1 University is required.

23. As is clear the wordings used in the Ordinance as also the Statute is ‘previous approval’ and ‘prior approval’ respectively. It is clear that what is contemplated is an approval and not a permission. The learned council for the respondent No.1 University has relied on a judgment of the Apex Court in Ashok Kumar Das and others Vs. University of Burdwan and others reported in (2010) 3 SCC 616 in this regard. As per the Black Law Dictionary, 5th edition, approval means the act of confirming, rectifying, assenting, sanctioning or consenting to some act or think done by another. In the said judgment referred to supra, the Hon’ble Court, relying on an earlier judgment in U.P. Avas Evam Vikas Parishad Vs. Friends Coop. Housing Society Ltd., 1995 Supp (3) SCC 456 stated that the difference between approval and permission is that in the first case, the action holds good until it is disapproved while in the another case, it does not become effective until permission is obtained. It is clear that the word approval is on an higher pedestal than the word permission. As far as service law is concerned Para 13 of the said judgment is reproduced as under.

                   13. Following the decision in U.P. Avas Evam Vikas Parishads, this Court again held in High Court of Judicature for Rajasthan v. P.P. Singh in para 40: (SCC p. 255)

                   "40. When an approval is required, an action holds good. Only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)"

The controversy in the present matter is to be decided in the backdrop of the meaning of the two words as enunciated by the Hon’ble Apex Court in the decision referred to supra.

24. If the impugned resolution of the Management Council of the respondent No.1 University which is passed on 27.3.2024 is perused in the backdrop of these facts, it states that the punishment inflicted by the Management is shockingly disproportionate to the charges levelled against the employee i.e. the respondent No.3. Thereafter, it goes on record that the entire enquiry against the said employee has been conducted with vindictive attitude and with a mala fide intent to get rid of services. It further goes on to record that the written notes of arguments by the delinquent employee has not been considered and no cogent and genuine reasons have been recorded in the enquiry report by the Enquiry Committee. It further goes on to record that the past service is clean and unblemished and then it also states that a single act of the said employee does not mean that he should be punished with such severe punishment. If therefore records that 8 Members of the Management Council were not in favour of terminating the respondent No.3 and therefore the resolution was accordingly passed.

25. What is clear from the said resolution is that it is nothing but vagueness documented. No details of whatsoever nature as required are seen in the sad resolution. This is apart from the fact that in my considered opinion, the scope and ambit of the Management Council is very limited due to the word ‘approval’ used in the Statute and the Ordinance referred above. The Management Council in my considered opinion cannot act as an Appellate Authority as if it is deciding the veracity or otherwise of the enquiry report. This finding is coupled with the fact that there is a serious doubt as to whether the entire enquiry report was in fact placed before the Management Council in light of the agenda which is filed along with the petition.

26. It seems that the Management Council had a predetermined mindset, and therefore, it has reflected in recording such vague and sweeping reasons without any singular detail thereof. The powers are granted to the Management Council in view of the Full Bench judgment of this Court, since initially the prior approval was to be needed only with respect to ground of breach of any of the terms of contract and abolition of the posts. Thus, the power granted by the Full Bench is to be to be exhausted or utilized only within the parameters, which would certainly not mean acting as an Appellate Authority over the right of the employer to conduct a disciplinary enquiry against its employee.

27. The counsel for the petitioner has rightly relied upon the judgment of the Hon’ble Apex Court in M.M. Malhotra Vs. Union of India and others, reported in (2005) 8 SCC 351 and more particularly para 17 onwards thereof to state that misconduct is defined as a transgression of some established and definite rule of action where no discretion is left, except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness. He also relies on judgment of the Hon’ble Apex Court reported in (2011) 4 SCC 584, State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya which holds that when a Court is considering whether the punishment of termination of service imposed upon employee is shockingly, excessive or disproportionate to the gravity of the prude misconduct, the loss of confidence in the employee will be an important and relevant relevant factor. He also draw support from a judgment reported in (2015) 2 SCC 610, Union of India and others Vs. P. Gunasekaran and more particularly para 12 and 13, thereof which states that when an enquiry is conducted by an employer the authority and even the High Court has to see only the fact that the said is done by a Competent Authority as per the procedure prescribed and there is no violation of the principles of natural justice in conducting the said proceedings. It has also to see that whether some considerations extraneous to the evidence and merits are considered, however, under Article 226 and 227 of the Constitution of India. The High Court shall not appreciate the evidence, interfere with the conclusions in the enquiry in case the same has been conducted in accordance with law would not go into the adequacy or reliability of the evidence and interfere. If there is some legal evidence on which the findings can be based.

28. I respectfully agree with the contents canvassed by the learned counsel and as propounded by the Supreme Court and this Court time and again. If the resolution of the Management Council, the details of which are reproduced supra is tested on this touchstone, it seems that the Management Council has acted exactly opposite to this settled proposition of law. If this Court exercising jurisdiction under Article 226 and 227 of the Constitution of India has only a very limited power of interference as stated Supra, it therefore follows the Management Council cannot usurp jurisdiction or a role which is much wider than the role attributed to this Court. If the resolution of the Management Council impugned in the present petition is scrupulously perused, it necessarily follows without any hesitation that the Management Council seems to be acting as a super employer, not only sitting as an Appellate Authority over the findings of the Enquiry Officer, but disturbing those findings with vague reasons. If the petitioner Management has lost confidence in the employee, it is only for the said Management to decide as to whether to continue the services of the said employee or to terminate his services after conducting a departmental enquiry as per the service rules. The Management Council of the respondent No.1 University looking to the limited scope of exercise of power cannot foist an employee on the private Management since the approval is only an added layer of protection granted to the concerned employee. In my considered opinion the same cannot be stretched to such an extent that the Management Council can act in total disregard of the wish of the private Management.

29. In view of the discussion held herein above, I have no hesitation to hold that the resolution of the Management Council cannot be countenanced. It, therefore, needs to be quashed by passing the following order :

ORDER

(i) The Writ Petition is allowed.

(ii) The Resolution dated 27.3.2024 vide item No.57 passed by the respondent No.2 i.e. the Management Council of Santa Gadge Baba Amravati University is quashed and set aside.

(iii) The petitioner Management is granted permission to terminate the services of the respondent No.3, as per the resolution of the Managing Committee dated 22.1.2021.

(iv) Writ Petition is disposed of.

(v) Rule is made absolute in above terms. No costs.