Heard.

2.Rule. Rule returnable forthwith. Heard finally at this stage with the consent of the parties.

3.By this petition, the petitioners (hereinafter referred to as the Management) seek to quash and set aside the order dated 17-8-2004 passed by the learned Presiding Officer of the University and College Tribunal, Nagpur, rejecting the application of the Management dated 15-7-2004 praying for framing a preliminary issue in respect of fairness or otherwise of the inquiry conducted against respondent no.1 (hereafter referred to as the Employee) and in case the said inquiry is held to be unfair, granting opportunity to the Management to prove the misconduct of the employee before the Tribunal.

4.A brief resume of the facts giving rise to the present writ petition would be necessary. It is not disputed that by appointment order dated 16-6-1999 the employee was appointed as Lecturer in Political Science by the Management and in pursuance of the said appointment order, she joined her duties on 2-7-1999. From the allegations made in the appeal before the University and College Tribunal, it appears that the dispute between the management and the employee started way back from the meeting held on 11-1-2000. Thereafter some issuance of show cause notice was there, removal of the employee was there which was set aside by the University and College Tribunal. Thereafter again a charge-sheet was issued against the employee on 12-4-2001 and Enquiry Officer was appointed along with Presenting Officer by the Management. Inquiry was conducted and ultimately by order dated 21-5-2003 the employee came to be removed from the service.

5.The employee challenged the order of removal by preferring an Appeal No.N-14/2003 under Section 59 of the Maharashtra Universities Act, 1994, before the University and College Tribunal, Nagpur on 19-6-2003. In the appeal, she raised several grounds making aspersions not only on the Management but also the Enquiry Officer (an Advocate) and the Presenting Officer (another Advocate) appointed by the Management. The employee alleged that the inquiry against her was conducted in a manner detrimental to her interest and without considering any of the objections raised by her. She was also not paid salary so as to enable her to engage a lawyer for defending her. She, therefore, prayed for quashing and setting aside the order of removal dated 21-5-2003 and for reinstating her in the post of Lecturer in Political Science.

6.The Management filed its written statement before the University and College Tribunal, Nagpur on 3-9-2003 denying all the allegations made by the employee. In para no.53 of the written statement, the Management requested the Tribunal for permission to prove the misconduct before it if the inquiry is found to be defective on any count or it is found that the charge against the employee are not proved.

7.Thereafter the proceedings before the University and College Tribunal on the matter was fixed for final hearing.

8.On 15-7-2004 the Management moved an application to frame preliminary issue about the fairness or otherwise of the inquiry conducted against employee and in case the inquiry was held to be unfair, then for granting an opportunity to the Management to prove the misconduct against the employee. This was strongly opposed by the employee. After hearing the parties, the learned Presiding Officer of the University and College Tribunal, Nagpur dismissed the application by order dated 17-8-2004 on two grounds, firstly that it is not shown by the Management as to what more evidence it was going to adduce to prove the misconduct of the employee besides the evidence already adduced by it before the Enquiry Officer. The second ground on which the said application was rejected by the learned Presiding Officer was that prejudice will be caused to the employee by delaying the matter because no interim order was passed in her favour protecting her services. In the opinion of the learned Presiding Officer, it was not proper at that stage to allow the application and hence the said application was dismissed.

9.The petitioner/ Management has challenged the said order. During their arguments, the learned counsel for the parties relied on the following cases :

(i) The Cooper Engineering Ltd. Vs. P.P. Mundhe, A.I.R. 1975 S.C. 1900 (Three Judges Bench);

(ii) D.P. Maheshwari Vs. Delhi Administration, A.I.R. 1984 S.C. 153 (Three Judges Bench);

(iii) Karnataka State Road Transport Corporation Vs. Lakshmidevamma, 2001 (5) Supreme Court Cases 433 [LQ/SC/2001/1185] (Five Judges Bench);

(iv) P. Dalmiya Lions College Vs. A.M. Rangaparia, 1988 Mh.L.J. 530 (Bombay High Court);

(v) Bal Shikshan Mandal Vs. Poonam Rameshwar Joshi, 2002 (4) Mh.LJ. 848 (Bombay High Court-Aurangabad Bench).

10.The learned counsel for the Management strenuously urged that in so far as regards disciplinary proceedings are concerned, it has been consistently held by the Apex Court that by way of procedure preliminary issue regarding fairness or otherwise of the domestic inquiry should be framed and should be decided and in case, it is held that the principles of natural justice were violated and the domestic inquiry was not fair, the Management/ Employer should be allowed to adduce evidence before the Labour Court to prove the charges levelled against the employee. This procedure was prescribed by the Supreme Court in order to avoid delay in deciding the industrial disputes and for the benefit of both the employer as well as the employer because in case the Labour Court finds that the domestic inquiry was not fair and proper and it was set aside in that case there was no prohibition for the Management to hold fresh inquiry on the basis of the same charges which would again consume some time and the industrial peace would be jeopardized. That is why the Supreme Court found that though it was not a statutory right given to the Management, the Court concerned had every power to frame preliminary issue about the fairness or otherwise of the domestic inquiry and in case to domestic inquiry is found vitiated for any reason to allow the Management/Employer to adduce evidence before the Court/Tribunal in respect of the charges levelled against the employee. This position has not been disturbed even in the latest judgment delivered by the Five Judges Bench in K.S..R.T.C. Vs. Lakshmidevamma. A single Judge of Aurangabad Bench of this Court adopted the same view in Bal Shikshan Mandal Vs. P.R. Joshi while dealing with the School Tribunal. It may be noted that in another case under Bombay University Act while considering the jurisdiction of the College Tribunal constituted under that Act, the Single Judge of this Court in P. Dalmiya Lions College Vs. A.M. Rangaparia held the same thing. It may be noted that the provisions under the Maharashtra Universities Act, 1994 and the Bombay University Act, the provisions are pari materia and therefore, the observations in P. Dalmias case can be conveniently imported in the present case.

11.It was strenuously urged by the learned counsel for the employee that the matter has been pending before the University and College Tribunal right from 19-6-2003 and though in the written statement filed by the Management on 3-9-2003 it had requested the Tribunal to permit it to prove the misconduct before the Tribunal in case inquiry is found to be defective on any count, the Management did not take any action in this regard till 15-7-2004 when it moved Application No.20-A/2004. This application was moved only after the matter was fixed for final hearing and was adjourned for several times for final hearing. The learned counsel for the employee, therefore, urged that the Tribunal was justified in rejecting the said application at such a belated stage.

12.It may be noted that the learned Presiding Officer of the Tribunal rejected the application on two counts as pointed out earlier, the first ground is that the Management has not shown as to what more evidence it would adduce to prove the misconduct of the employee besides the evidence which has been already produced by it before the Enquiry Officer. In my humble opinion, this ground cannot be sustained because once the inquiry is held to be not fair, all the evidence adduced by the Management against the employee in support of the charges levelled by it goes and the Management has to adduce the entire evidence before the Tribunal in order to substantiate the charges. So it was not necessary for the Management to explain as to what more evidence it was going to adduce to prove the misconduct of the employee besides that evidence already adduced by it before the Enquiry Officer.

13.Another reason put forth by the learned Presiding Officer for rejecting the application is that prejudice will be caused to the employee by delaying the matter in view of the fact that no interim order is passed in her favour. It is true that the employee has been removed from the service by order dated 21-5-2003 and the said order has not been stayed. Thus since then she is out of employment. However, because the employee is out of employment, it cannot be said that the Management should not be permitted to adduce evidence before the Tribunal in order to prove the charges levelled against the employee in the event the domestic inquiry is held to have been vitiated on any count.

14.Thus in my humble opinion, both the reasons for which the application of the Management dated 15-7-2004 was rejected by the learned Presiding Officer, cannot be sustained. The impugned order, therefore, will have to be set aside. Hence the order:

15.The petition is allowed. The impugned order dated 17-8-2004 is quashed and set aside.

16.The learned Presiding officer is required to frame preliminary issue about the fairness or otherwise of the domestic inquiry held against the employee (respondent no.1) and in case it is found that the said inquiry is vitiated on any count, to allow the Management to adduce evidence to prove the charges levelled against the respondent/ employee.

17.Rule is made absolute in the above terms. No costs.