1 W.P.No.6513/11
REPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.6513 OF 2011.
Ramesh S/o Rangnathrao Sonawane,
Age 52 years, Occ.Service as
Junior Manager, MSEDECL,
Osmanabad, R/o Behind Amba Hanuman,
Ambajogai Road, SBH Colony,
Latur, Dist.Latur. ... Petitioner.
Versus
1. Maharashtra State Electricity
Distribution Company Ltd.,
through Superintending Engineer,
Osmanabad.
2. The Regional Executive
Director, M.S.E.D.C.L.
Senapati Bapat Road,
Pune.
3. The Director (Operation),
M.S.E.D.C.L. Disciplinary
Action Section,
Prakashgad, 4th floor,
Station Road, Bandra (E),
Mumbai-51. ... Respondents.
...
Mr.N.B.Khandare, advocate holding for
Mr.S.S.Deshmukh, advocate for the petitioner.
Mr.S.M.Godsay, advocate for the Respondents.
::: Downloaded on - 09/06/2013 18:02:12 :::
2 W.P.No.6513/11
...
CORAM : S.V.GANGAPURWALA,J.
Reserved on : 16.12.2011.
Pronounced on: 23.12.2011.
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule returnable forthwith. With the consent of the parties the petition is taken up for final hearing.
3. The petitioner at the relevant time was working as Junior Manager (Personnel) with the Respondents. On 2.2.2010, an offence punishable under the provisions of Prevention of Corruption Act, came to be registered against the petitioner. The petitioner was suspended by Respondents vide order dated 15.2.2010 with effect from 2.2.2010. On or about 26.3.2010, the charge-sheet in Departmental inquiry was served on the petitioner. The petitioner filed Writ Petition No.2809/2010, challenging the said charge-sheet. The said Writ Petition was filed ::: Downloaded on - 09/06/2013 18:02:12 ::: 3 W.P.No.6513/11 on the ground that as Criminal case is pending, the Departmental Inquiry be stayed. The said Writ Petition was pending. In the Departmental proceedings the petitioner sought extension of time. On 24.6.2010, show cause notice was issued to the petitioner calling explanation from the petitioner as to why penalty of dismissal should not be imposed. The petitioner on 5.7.2010, filed application for extension of time to file say. The petitioner came to be dismissed from service on 19.7.2010. The petitioner challenged the said order of dismissal in the Departmental appeal. The same came to be dismissed. The petitioner on 21.4.2010, is acquitted of the charges under the Prevention of Corruption Act by the Sessions Court. The petitioner has impugned the order of dismissal from service and the rejection of his appeal in the present Writ Petition.
4. Mr.Khandare, learned counsel for the petitioner submits that the Criminal case filed against the petitioner under the Prevention of Corruption Act and the Departmental proceedings ::: Downloaded on - 09/06/2013 18:02:12 ::: 4 W.P.No.6513/11 were on the same set of facts. The charge-sheet issued in the Departmental proceedings is practically the same charge-sheet filed in the Criminal case before the Sessions Court. There was no difference in the same and as the Criminal Court has acquitted the petitioner, the order of dismissal deserves to be set aside. For the said purpose, the learned counsel relies on the judgment of the Apex court in a case of "G.M.Tank Vs. State of Gujarat and another" reported in 2006 (5) SCC 446.
5. The learned counsel contends that there was no inquiry in the eye of law. No evidence was recorded in the said Departmental Inquiry proceedings. Not a single witness was examined nor statement of any person was recorded. It is a case of no inquiry. In such circumstances, the dismissal order can not be sustained.
6. The learned counsel contends that even if it is assumed that the Respondent had resorted to summary inquiry, still, the Respondent has to base its decision on some evidence. As no ::: Downloaded on - 09/06/2013 18:02:12 ::: 5 W.P.No.6513/11 evidence is recorded nor there is any evidence of the guilt of the petitioner, the petitioner could not have been terminated.
7. Mr.Godsay, learned counsel for the Respondents submits that the Respondent has resorted to summary inquiry as laid down under Regulation 90 of the M.S.E.D.C.L. Employees' Service Regulations 2005, as the misconduct is too grave. The Criminal case was registered against the petitioner and he was charge-sheeted in the said criminal case under the Prevention of Corruption Act. The gravity of the offence is much more, and as such it was not necessary to follow the normal procedure. The petitioner was given opportunity but he failed to file his say.
No error is committed while imposing the punishment of dismissal on the petitioner. The learned counsel relies on the judgment of the Division Bench of this Court in case of W.P.No.
1853/2009 dated 2l.11.2009 and the judgment of the Division Bench of this Court in W.P.No.
4692/2010, dated 23.6.2010 and the judgment of the learned Single Judge of this Court in W.P.No.
::: Downloaded on - 09/06/2013 18:02:12 ::: 6 W.P.No.6513/116751/2008. The learned counsel submits that the Writ Petition is without any merit and deserves to be dismissed.
8. Before adverting to the arguments canvassed by the learned counsel for the respective parties, it would be appropriate to refer to the Regulation 90 of the said MSEDCL Employees' ig Service Regulations 2005. The said regulation 90 reads as under :
"90. SUMMARY PROCEEDINGS The Competent Authority may hold summary proceeding/s in case,
(a) where the employee is caught red-handed having committed or while committing an act of misconduct,
(b) where there is obvious evidence of the act of misconduct having been committed or,
(c) where the misconduct or misbehaviour is considered too grave and convincing to warrant or justify the normal procedure to be followed, ::: Downloaded on - 09/06/2013 18:02:12 ::: 7 W.P.No.6513/11
(d) where having regard to the surrounding circumstances and the gravity of the offence for which the employee is convicted in a court of criminal law, Competent Authority is of the opinion that summary proceedings are appropriate for deciding any punishment including dismissal or removal,
(e) where an employee is involved in misconduct of serious nature causing loss to the Company is due for retirement from the services of the Company within a period of three months.
without following the procedure prescribed in Service Regulation 88 and take a decision on the evidence available after charge-sheeting the employee concerned, as prescribed in Annexure 3 and after giving him an opportunity to make a statement.
The summary decision may be
made effective forthwith unless
::: Downloaded on - 09/06/2013 18:02:12 :::
8 W.P.No.6513/11
stayed by the Appellate Authority."
9. With the assistance of the learned counsel, I have gone through the documents annexed with the petition. It would appear that the charge-sheet filed against the petitioner in the Criminal case before the Sessions Court and the charge-sheet issued to the petitioner in the Departmental Inquiry is practically the same.
ig On the basis of the evidence before it, the Sessions Court has acquitted the petitioner of the charges levelled against him. It is trite that in the Criminal case, the charges have to be proved beyond reasonable doubt. In the Departmental proceedings, the charges may not be required to be proved beyond reasonable doubt but none the less in Departmental proceedings, the Inquiry Officer has come to the conclusion on the basis of some evidence.
10. I am not called upon to decide as to whether Regulation 90, that is of summary inquiry would be applicable or whether employer ought to have resorted to Regulation 88 i.e. the normal ::: Downloaded on - 09/06/2013 18:02:12 ::: 9 W.P.No.6513/11 procedure for conducting an inquiry. Even assuming that Regulation 90 applies, still, it does not dispense with the evidence.
11. In the present case, in the
Departmental Inquiry, not a single witness is
examined nor a statement of any person is
recorded. Simply on the basis of charge-sheet
the Inquiryig Officer has passed the order of
dismissal from service. The charge-sheet issued
to the petitioner in the Departmental Inquiry is practically the same charge-sheet as filed in the Criminal case before the Sessions court. Even Regulation 90 prescribes the decision to be taken by the competent authority on the "evidence available" after charge-sheeting the employee concerned.
Evidence is the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writings or records. The word evidence includes all the legal means exclusive of mere arguments which did ::: Downloaded on - 09/06/2013 18:02:12 ::: 10 W.P.No.6513/11 tend to prove or disprove any matter of fact, the truth of which is submitted to the investigation.
In other words, evidence includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation is established or disproved. As per Indian Evidence Act, evidence means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; all documents produced for the inspection of the Court; such documents are called documentary evidence.
12. In the present case, there is
absolutely no evidence. The Departmental Inquiry
proceeded on the basis of charge-sheet which was filed in the Criminal case before the Sessions Court without any independent evidence. The Criminal Court has acquitted the petitioner of the charges levelled against him. Even if summary procedure is resorted to as contemplated under Regulation 90, still, the punishment has to be on the basis of some evidence. When no ::: Downloaded on - 09/06/2013 18:02:12 ::: 11 W.P.No.6513/11 evidence is recorded, it can not be said that any inquiry has been conducted. The judgment of the Apex Court in a case of "G.M.Tank Vs. State of Gujarat and another" referred supra would be relevant.
13. In view of the above, I have no hesitation to hold that the order of dismissal inflicted on the petitioner vitiates as the same is based on an inquiry conducted without evidence.
14. In the result, the Writ Petition is allowed. Rule is made absolute in terms of prayer clause (B). However, there shall be no order as to costs.
(S.V.GANGAPURWALA,J.) asp/office/wp651311 ::: Downloaded on - 09/06/2013 18:02:12 ::: 12 W.P.No.6513/11 ::: Downloaded on - 09/06/2013 18:02:12 :::