JUDGMENT : J.B. Pardiwala, J. 1. By this application under Article 227 of the Constitution of India, the applicant, a former reader of the M.S. University, has prayed for the following reliefs; "(a) This Hon'ble Court be pleased to issue a writ of certiorari or in the nature of certiorari quashing and setting aside the judgment and award dated 15.02.2000, passed by the Gujarat University Services Tribunal in Appeal No. 2 of 1997. (b) Pending admission and final hearing of this petition the Hon'ble court be pleased to stay the operation and execution of the judgment and award dated 15.02.2000, passed by the Gujarat University Services Tribunal in Appeal No. 2 of 1997. (c) Any other order in the interest of justice be passed." 2. The case of the applicant may be summarized as under; 2.1 The respondent No. 1, namely, Shri G.U. Khokhar joined the services of the M.S. University, Vadodara as a reader in the year 1979. On 9th July, 1990, while serving as a reader, he was served with a departmental charge-sheet, containing the following charges; "1. That you demanded and received illegal gratification from a student reading for the examination in the subject of Thermal Engineering II for divulging to him questions set in the question paper of the said examination and received the said amount from the said student at your residence. However, thereafter you did not disclose the said question paper to the said student for the reason best known to you. 2. That you received to unfair means with dishonest purpose of favorite certain students in assessment of their answer books inspite of the University having adopted the system of concealed numbers on the answer books of Thermal Engineering II of Second Semester of B.E. III (M) Examination held in November/December 1989 by examination putting identification marks in the answer books so as to enable you to identify the answer books of the said students. 3. That in the question paper of Thermal Engineering II at the Second Semester of B.E. III (M) held on 14.5.90 you set questions not based on the course taught in the class room during the academic term and thereby placed the regular students to disadvantage with a view to motivate the students to join your tuition. 4. 3. That in the question paper of Thermal Engineering II at the Second Semester of B.E. III (M) held on 14.5.90 you set questions not based on the course taught in the class room during the academic term and thereby placed the regular students to disadvantage with a view to motivate the students to join your tuition. 4. That you have given tuition to the student for the Entrance Test Part-time Degree Courses giving guarantee to the student of securing admission and with a view to obtain undue monetary gain for the said student. That the conduct mentioned in the foregoing charges 1 to 4 either jointly or separately amounts to adopting unfair means at the University Examination which tantamounts to grave misconduct. A statement of imputation and a list of documents are enclosed. Please note that the details as to the above charges are given in the statement of imputation, which shall be read as part of the charges. You are requested to submit written statement of defence and to state whether you desire to be heard in person in respect of the said charges. If you fail to submit your written statement of defence by 20th July 1990 it will be presumed that you do not want to submit any written statement of defence and do not wish to examine and produce any evidence. You are also called upon to state whey the above charges or either of them if held proved, should not be considered as good and sufficient ground for imposing upon you any of the punishments specified in O.215A of the M.S. University Hand Book. Any representation, that you may make with regard to this action taken against you, will be considered before the final order of punishment is passed. The relevant documents are in the custody of the undersigned, and you may take inspection thereof on or before 16th July 90 during office hours." 2.2 It appears that the preliminary inquiry, in the form of a fact finding inquiry, was conducted by a retired Judicial Officer, and the regular departmental inquiry was conducted by one Shri J.A. Shah, Professor, serving with the University. 2.3 The Inquiry Officer, in his inquiry report, gave a clean chit to the writ applicant. 2.3 The Inquiry Officer, in his inquiry report, gave a clean chit to the writ applicant. The Inquiry Officer recorded his findings and conclusions as under; "On the basis of the presentations made by various witnesses, their cross examination, written and oral statements given by the charge sheeted employee and presenting Officer and reports and record of evidences and documents that were available to me as Inquiry Officer during the process of inquiry for the charge sheet, given to Mr. G.U. Khokhar, dated 9.7.1990, I submit following findings and conclusions. Four specific charges were placed against Mr. Khokhar and I will discuss each of them specifically. Charge No. 1: About receiving illegal gratification from a student at the residence of Mr. G.U. Khokhar both the complainant and Mr. Khokhar have submitted their affidavits in support of their facts. Mr. Manish Naik has stated that "Mr. G.U. Khokhar had demanded Rs. 1200/- for which he had promised to give me very good marks in the subject of Thermal Engineering-II. He had threaten to victimise me. I had not paid him money. So I had to give him money." While in the affidavit of Mr. G.U. Khokhar, he has said that he outrightly denies the charge placed on him about demanding and receiving Rs. 1200/- from Mr. Manish Naik at his residence. He had never promised him to give question paper. He has never met Mr. Manish Naik except in the college class room. He had never threatened him any time and the complaint made by him is false, malice and with an intention to unnecessarily involve him. Thus the statements of both the in affidavits are contradicting and it is difficult to take support of these documents. I have studies the original complaint dated 13.5.1990 made by Mr. Manish Naik to Mr. Nilesh Shukla as a first information report and taken its support. While studying this original documents alongwith the copy of question papers received by Mr. Manish, it is found that in this letter which is origin of the case, it is written that two of the teachers of his department have asked some money which he has paid them and for which they have given me the question paper. While studying this original documents alongwith the copy of question papers received by Mr. Manish, it is found that in this letter which is origin of the case, it is written that two of the teachers of his department have asked some money which he has paid them and for which they have given me the question paper. In the sealed cover question papers that are submitted alongwith the complaint, at the top there is mention of the names of two teachers and amount which had been tried to remove afterwards, but they are being read - "B.M. Bharuchi- Rs. 800/- or may be Rs. 700/- and "G.D. Kahar -Rs. 700/-. There is no mention of my other teacher or Mr. G.U. Khokhar. Thus there is no case of demanding money, receiving money and giving question paper by Mr. Khokhar. It has also been already accepted in preliminary inquiry that there was no leakage of paper of the Section- II of Thermal Engineering II Question paper. Thus, I find that the charge at number one has no basic support and is not proved. Charge No. 2 About Charge No. 2 of the report of expert Prof. M.S. Shah has been taken. About his report Prof. Shah has mentioned during inquiry that the work was assigned to him on 3.6.1990 and he was requested to stay back in Baroda and complete his report and give it to University at the earliest. As it was not possible for him to do so Prof. Rumy Mistry was handed over this report personally on 5.6.1990 when he visited Modasa. Mr. Shah as written by the University had to find out impartiality of evaluation of answer books in the subject of Therrmal Engineering at the second semester Examination of B.E.III(M) of Nov. Dec. 1989, and that some candidates made discrete attempts to identify their answer books to enable them in influence the examiner and that they did influence the examiner and secured more marks. inspite of concealed seat number system. From the letters written to Mr. Shah by University for the assignment and other circumstantial facts it seems to be predetermined matter to submit report in a particular fashion only as desired by University to support charge to Mr. Khokhar. inspite of concealed seat number system. From the letters written to Mr. Shah by University for the assignment and other circumstantial facts it seems to be predetermined matter to submit report in a particular fashion only as desired by University to support charge to Mr. Khokhar. University had not concealed the marks an answer hooks supplied to him as per reassessment system and this has helped in prejudicial value judgement, without giving real quantitative marks. The other facts presented in the inquiry proceedings also are not supportive to the report of Prof. M.S. Shah about the matter referred, taking statements of students for putting identification marks and following unfair means has also not been considered. The matter of Nov-Dec., 1989 examination results which is six months old has been taken out at state (post thought) where the answer books have passed through many hands and it cannot be just placed on examiner that this is his fault, unless some students would have come and stated that they had put identification marks at the instance of Mr. Khokhar. Thus charge No. 2 also does not have reliable facts which can prove Mr. Khokhar guilty. Charge No. 3: About Charge No. 3 in the Question paper of Thermal Engineering-II at the second semester of B.E.III(M) held on 14.5.1990, Mr. Khokhar set questions not based on the courses taught in the class room during the academic term and thereby placed the regular students to disadvantage with a view to motivate the students to join his tuitions, was placed. Prof. M.S. Shah was asked to hold Preliminary inquiry and verify the matter. He was supplied with the class notes of a student which were of only seven classes held on 23.1.90, 29.1.90, 12.2.90, 13.2.90, 19.3.90, 26.3.90, 27.3.90, 27.3.90. As per teaching pattern there are two periods every week which comes to about 23 classes in a term and that has been stated by Mr. Khokhar during inquiry also. Mr. B.B. Shah has also supported Mr. Khokhar's statement that even if the sufficient classes are not held due to holidays or disturbances extra classes are held with permission of Dean and Syllabus is completely covered. Expert Mr. M.S. Shah's report is based on only seven classes notes which cannot be relied upon to decide the issue. Even complainant Mr. Mr. B.B. Shah has also supported Mr. Khokhar's statement that even if the sufficient classes are not held due to holidays or disturbances extra classes are held with permission of Dean and Syllabus is completely covered. Expert Mr. M.S. Shah's report is based on only seven classes notes which cannot be relied upon to decide the issue. Even complainant Mr. Manish Naik also did not submit his class notes before or during inquiry to support his complaint. There are other variables besides class room teaching like practicals in laboratory. suggested reading books given by the teacher in the class which all students are supposed to study and on the basis of all these the question papers are drawn. As an expert Mr. M.S. Shah would have taken full view of all these aspects before giving his report which has not been done and so as an inquiry officer, I cannot rely on report of Prof. M.S. Shah. There is no other evidence presented in inquiry which can support this charge and keeping view the other related presentations in the inquiry. I feel that the Charge No. 3 does not have sound factual base and is not proved. Charge No. 4 About Charge No. 4, that Mr. Khokhar had given tuition to the student for the entrance test to part time degree courses giving guarantee to the student of securing admission and With a View to obtain undue monetary gain from the said student, witness of student Mr. Nikunj Sheth was examined and cross examined during inquiry. Mr. Sheth does not know Mr. G.U. Khokhar and whether he works in Polytechnic or Technology. He has not done or signed any affidavit and is seeing it today only. Mr. Sheth knows Mr. lndravadan Patel and states that Mr. Patel fraudulently involves others In such wrongful acts. He has never given any affidavit to University and does not know its contents. Thus Mr. Sheth has disclaimed the contents of the affidavit. Besides this, Mr. G.U. Khokhar has also submitted that he was never involved in the entrance test work to part-time degree courses and this has not been negated by University in inquiry proceedings with any proof or evidence. Mr. Nikunj Sheth was only witness from University for this charge and the charge does not get support, and is disproved. Besides this, Mr. G.U. Khokhar has also submitted that he was never involved in the entrance test work to part-time degree courses and this has not been negated by University in inquiry proceedings with any proof or evidence. Mr. Nikunj Sheth was only witness from University for this charge and the charge does not get support, and is disproved. Thus, in View of all the facts and material presented during the course of inquiry on record. I have discussed the base and reasons of my findings and conclusions. I come to the final conclusion that not a single charge, that is from No. 1 to 4 placed in the charge sheet dated 9.7.1990 issued to Mr. G.U. Khokhar, is proved." 2.4 The Executive Council of the University took into consideration the report which was filed by the Inquiry Officer referred to above and it thought fit to disagree with the same. 2.5 The Executive Council thought fit to constitute a committee of three members for the purpose of once again looking into the charges, which were levelled against the applicant herein. The three member committee, which was constituted by the Executive Council, reached to the conclusion that out of the four charges, two charges could be said to have been established against the applicant. 2.6 The Executive Council, as the Disciplinary Authority, relying on the report of the three member committee, thereafter, issued a show-cause notice to the applicant calling upon him to show-cause why major penalty should not be imposed upon him. After giving an opportunity of hearing, ultimately, the Executive Council passed an order, dismissing the applicant from the service. Being dissatisfied, the applicant challenged the order of dismissal before the Gujarat Universities Services Tribunal at Ahmedabad by filing the Appeal No. 2 of 1997. The Tribunal, by its judgment and order running in 285 pages, allowed the appeal. The operative part of the same reads as under; "In view of discussion in this order and as the fact remains that, University is having no inquiry record intact, and even, what is produced on the record of the case by giving pencil mark with Exh. The Tribunal, by its judgment and order running in 285 pages, allowed the appeal. The operative part of the same reads as under; "In view of discussion in this order and as the fact remains that, University is having no inquiry record intact, and even, what is produced on the record of the case by giving pencil mark with Exh. 43, is also doubtful to the extent that, whether the same was forming the part of inquiry record or not, and, therefore, in that case of the circumstances, it appears that, even though, the matter is remanded, considering the request of the University, in my opinion, it will be difficult for the University, in absence of original enquiry record intact, to consider the case of appellant, by considering the documents and evidences, recorded at the relevant time during enquiry. It appears that, in that case of the circumstances, though, it was duty of the University to keep the record intact, and as the University has not discharged its such duty properly, needless to say that, University must have to suffer the music of its negligence, and, therefore, though the argument of the University to remand the matter appears to be sound, in view of settled position of law, it does not appear to be fitted in the present case, considering special facts and circumstances of this case, and, therefore, instead of remanding the matter to the University, to consider the issue against appellant denovo, exercising my powers, available under section 7(2) of the Gujarat Universities Services Tribunal Act, 1983. I hereby direct the University to reinstate appellant in services, treating him, as if that, no suspension and dismissal order was ever passed against him, and he is continued in his job, from the date of suspension order and onwards. University is hereby further directed to release the difference of salary, which appellant would have drawn, if not suspended and subsistence allowance paid to the appellant, till he came to be dismissed. Considering the affidavit, filed, being Exh. University is hereby further directed to release the difference of salary, which appellant would have drawn, if not suspended and subsistence allowance paid to the appellant, till he came to be dismissed. Considering the affidavit, filed, being Exh. 63 at P. 507 of the record of the case, and considering the fact that there is no counter reply to this by the University, as the affidavit of the appellant remains uncontroverted, qua, about his unemployment University is hereby directed to pay full back wages to the appellant, from the date of dismissal order, till he is reinstated and with 12% simple interest on the same. University is hereby further directed that, while calculating the back wages, the effect of relevant increments in the relevant years, increasing in different allowances and revision of pay scales to be included. All the aforesaid dues are to be paid to the appellant herein within six months from today. As appearing in section 7(2) of the Gujarat Universities Services Tribunal Act, 1983, and considering the fact that when this whole order is dictated in the open court room of this Tribunal on different days, it is presumed to be within the knowledge of University, as the University is duly represented by Ld. Ad. And therefore University is hereby directed to comply the direction of reinstatement forthwith and direction about the payment in above stipulated period. So far as the question of cost is concerned, considering the facts and circumstances of the case, Rs. 5,000/- is hereby awarded in favour of the appellant and against the University, to be paid along with the aforesaid amount within six months. In view of what is observed in this order, and directions given, the matter is hereby allowed to the aforesaid extent and stands disposed off accordingly. Free copy of this order be provided to the parties on record, as and when the same becomes ready in due course, on their written request." 2.7 Being dissatisfied with the judgment and order passed by the Tribunal, the University has come up with this application." 3. I have heard Mr. S.N. Shelat, the learned Senior Advocate assisted by Mr. Mitul K. Shelat for the University and Mr. A.J. Yagnik, the learned counsel appearing for the respondent No. 1. I have also gone through the impugned judgment and order passed by the Tribunal. I have heard Mr. S.N. Shelat, the learned Senior Advocate assisted by Mr. Mitul K. Shelat for the University and Mr. A.J. Yagnik, the learned counsel appearing for the respondent No. 1. I have also gone through the impugned judgment and order passed by the Tribunal. Having regard to the nature of the charges, the defence of the respondent No. 1 as the delinquent and the findings recorded by the Tribunal, I am of the view that the order of dismissal passed by the University should be substituted with that of the premature retirement in public interest. The order of dismissal, which was passed by the Executive Council, as the Disciplinary Authority, is dated 2nd May, 1994. The respondent No. 1 should be treated as having prematurely retired with effect from 2nd May, 1994. 4. To the aforesaid extent, the order of the Tribunal is modified. It is needless to clarify that in view of such modification, the respondent No. 1 shall be entitled to the retiral benefits of his past service, i.e., rendered before 2nd May, 1994. The authority concerned shall work out the retiral benefits due and payable to the respondent No. 1 within a period of two months from the date of the receipt of the writ of the order and shall be paid to the respondent No. 1 accordingly. 5. The authority concerned shall also pass appropriate order as regards the regularisation of the period of suspension and calculate the arrears towards the difference in salary and pay to the respondent No. 1 accordingly. 6. With the above, this application is disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.