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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5173 OF 2013
Dattatraya s/o Nagnath Bhadakawad,
Aged 43 years, Occu. Service as
Additional Residential Deputy Collector,
Thane, Headquarter Jawahar, Dist. Thane,
R/o. C-1, Pitambar, Shri Complex,
Belawali Badlapur (W),
Tq. Ambarnath, Dist. Thane. ....Petitioner
Vs.
1 The State of Maharashtra,
Through the Secretary,
In the Department of Urban Development,
Mantralaya, Mumbai-32.
2 The Assistant Registrar,
In the office of Maharashtra
Lokayukta, in front of Mantralaya,
Administrative Building, Mumbai.
3 The Commissioner,
Municipal Corporation, Ulhasnagar,
Dist. Thane.
4 Shri Vishwas s/o Prabhakar Shende,
Aged Major, Occu; Journalist,
R/o. "Dainik Mumbai Mitra",
Maha-janshakti-404, Nirman Co-op.
Society, Veer Sawarkar Marg,
Ulhasnagar, Dist. Thane. ....Respondents.
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WITH
WRIT PETITION NO. 5171 OF 2013
Suresh s/o Keshav Gholap ....Petitioner
Vs.
The State of Maharashtra & Ors. ....Respondents
WITH
WRIT PETITION NO. 5172 OF 2013
Uttam s/o Shivram Lonare ....Petitioner
Vs.
The State of Maharashtra & Ors. ....Respondents
WITH
WRIT PETITION NO. 6353 OF 2013
Mohan s/o Sachanand Chijwani ....Petitioner
Vs.
The State of Maharashtra & Ors. ....Respondents
Mr. A.N. Irpatgire for the Petitioner in all the matters.
Mr. Suresh M. Kamble for Respondent No.3 in all the matters.
Mr. C.P. Yadav, AGP for the Respondent-State in all the matters.
CORAM : ANOOP V. MOHTA AND
G.S. KULKARNI, JJ.
DATE : 19 OCTOBER 2016.
ORAL JUDGMENT (PER G.S. KULKARNI, J.):-
2/7 ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:09:24 :::ssm 3 29-wp5173.13gp.sxw This batch of Petitions are filed by the Officers of the Government of Maharashtra, being aggrieved by the report/recommendation made by the Hon'ble Lokayukta dated 26 September 2011 to the Government of Maharashtra in case No.LO/Com/2686/2009 (T-1) and the consequent letter issued by Respondent No.1 dated 23 May 2013 to Respondent No.3-the Commissioner, Municipal Corporation, Ulhasnagar, District Thane.
2The grievance of the Petitioner is that the Hon'ble Lokayukta ought not to have made the impugned report without following the procedure under Section 10 of the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971 (for short 'the Act'), inasmuch as a hearing ought to have been granted to the Petitioner before making any recommendations. It is submitted that the report contemplates Civil and Criminal prosecution against the Petitioner and therefore, it was necessary for the Hon'ble Lokayukta to follow the procedure under Section 10 of the Act.
3 A reply affidavit has been filed by the Assistant Registrar, Office of the Hon'ble Lokayukta, inter-alia clarifying the position.
3/7 ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:09:24 :::ssm 4 29-wp5173.13gp.sxw What can be seen from the reply affidavit is that the Hon'ble Lokayukta has not undertaken any independent inquiry, but has merely recommended that the report of one-man inquiry committee, headed by Shri Asim Gupta (Inquiry Officer as appointed by the Government of Maharashtra), to be acted upon. The relevant extract of the affidavit as contained in paragraph No. 8, reads as under:-
"8. I say that Hon'ble Lok-Ayukta has only recommended that the report of Shri Asim Gupta dated 02/06/2008 shall be taken into account and those officers/ public servant who are indicted therein shall be proceeded with civil /criminal prosecution against them. It is made clear that no individual enquiry in respect of the member of committee (recruitment) was ever held by Hon'ble Lok-Ayukta. The enquiry was only limited, about taking action on the report of Shri Asim Gupta by the Government. Therefore question of issuing any notices to those public servants who were member of the said Committee, in regard to recruitment process of the staff in said Corporation, under Rule 15 of Maharashtra Lok-Ayukta and Upa-Lokayuktas Rules 1974 will never arise. No individual recommendation against any of the public servant was made by Hon'ble Lok-Ayukta. There was absolutely no violation of principal of natural justice."
4 A reply affidavit is also filed by the Deputy Commissioner (HQ) of Ulhasnagar Municipal Corporation. This affidavit reveals that, in the year 2003, a recruitment drive was undertaken to fill up the vacant reserved posts. A selection Committee was constituted as 4/7 ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:09:24 ::: ssm 5 29-wp5173.13gp.sxw contemplated under Section 54 of the Bombay Provincial Municipal Corporation Act, 1949. After the appointment process was completed, certain complaints were received in regard to the said recruitment. In pursuance of these complaints, the Urban Development Department, Government of Maharashtra appointed Shri Asim Gupta, the then Municipal Commissioner of Aurangabad Municipal Corporation as a one-man committee to inquire into the allegations made in the recruitment process. Mr. Asim Gupta, submitted a report to the Government of Maharashtra dated 2 June 2008.
5 It can be thus seen that what was inquired into by one-
man committee of Mr. Asim Gupta was a basic fact findings exercise or an inquiry, as regards allegations as made in the complaint.
6 A perusal of the affidavit filed by the Assistant Registrar of the Hon'ble Lokayukta also clearly indicates that there is no independent inquiry undertaken by the the Hon'ble Lokayukta. If the State Government has some material, including material on the basis of the report of one-man Committee of Mr. Asim Gupta, to take any departmental action or any other appropriate action against the 5/7 ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:09:24 ::: ssm 6 29-wp5173.13gp.sxw Petitioner, then surely the State Government has to independently consider these facts and take appropriate action as permissible in law.
7 It is thus clear that the Hon'ble Lokayukta has not taken any independent inquiry/investigation and has merely made recommendation on the basis of report of Mr. Asim Gupta, a one-man committee. The position is further clarified in view of the statement as made in para 13 of the affidavit filed by the Assistant Registrar of the Hon'ble Lokayukta which reads thus:-
"13. As per the statute as stands today, Hon'ble Lok- Ayukta being Ombudsman can make only recommendation to the competent authority. It is for the competent authority to execute the recommendations meaningfully, so as to take action against the erring public servant. The recommendations of Hon'ble Lok-
Ayukta are in consonance with the rules of Law."
8 Considering the above facts, we are of the clear opinion that, the recommendations of the Hon'ble Lokayukta as assailed in the Petition, are not as a consequence of an inquiry under Section 10 of the Act. The Hon'ble Lokayukta has only brought it to the notice of the State Government that due consideration is required to be given by the State Government to the report of Mr. Asim Gupta. Thus, any action which is required to be taken, is required to be taken 6/7 ::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 00:09:24 ::: ssm 7 29-wp5173.13gp.sxw independently by the State Government in accordance with law and the service rules, as applicable to the Petitioners. The apprehension of the Petitioners that the Hon'ble Lokayukta has directed Civil or Criminal action against the Petitioners without any inquiry under Section 10 of the Act is thus not well founded.
9 In view of above discussion, the Writ Petitions do not require any further adjudication. They are accordingly disposed of.
Interim order passed in these Petitions stand vacated.
(G.S. KULKARNI, J.) (ANOOP V. MOHTA, J.)
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