WP 4668/03 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4668/2003
Kashinath Ramdas Dewang,
aged about : 68 years,
resident of House No.108,
Ashok Nagar, Lakhani,
District Bhandara. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
through the Secretary to Government,
Agriculture & Co-Operation Department,
(A.D.F.), Maharashtra, Mumbai-400 032.
2. State of Maharashtra,
through the Secretary to Government,
General Administration Department,
Maharashtra, Mumbai-400 032. RESPONDENTS
Shri M.M. Sudame, counsel for the petitioner.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondents.
CORAM :SMT.VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATE : 5 TH JUNE, 2017.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.) By this writ petition, the petitioner challenges the order of the Maharashtra Administrative Tribunal, Nagpur, dated 28.04.2003 dismissing the original application filed by the petitioner and upholding the order of the State Government imposing the punishment of stoppage of next increment of the petitioner for a period of two years with cumulative effect as also the order compulsorily retiring him from service.
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WP 4668/03 2 Judgment
2. The petitioner was initially appointed as a Procurement Supervisor. The petitioner was promoted from time to time and at the relevant time, when the petitioner was charge-sheeted, he was working as an Assistant Project Officer, Sangli. The petitioner was suspended by an order dated 02.01.1982 and disciplinary proceedings were initiated against him. As per the charge-sheet dated 29.03.1982, as many as twelve charges were levelled against the petitioner. The enquiry officer conducted an enquiry and came to a conclusion that most of the charges levelled against the petitioner were proved. The punishment of stoppage of his next increment for two years with cumulative effect was proposed. A show cause notice was served on the petitioner and after considering the reply of the petitioner, by the impugned order dated 03.10.1985, the next increment of the petitioner was stopped for a period of two years. By a separate order dated 12.04.1988, the suspension period of the petitioner was treated as suspension period. The petitioner was compulsorily retired from service by the order dated 19.02.1987. The petitioner challenged the order of his retirement in a writ petition before the High Court. The writ petition was, however, dismissed. The petitioner then filed the original application challenging the orders of stoppage of his increment, treating the period of suspension as suspension period and the order of his retirement. The Tribunal, on an appreciation of the material on record, dismissed the original application filed by the petitioner. The order of the Tribunal is impugned in the instant petition. ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:29:33 :::
WP 4668/03 3 Judgment
3. Shri Sudame, the learned counsel for the petitioner, submitted that the Tribunal has failed to consider the submission of the petitioner that the findings of the enquiry officer are perverse. It is submitted that the enquiry was conducted jointly against several officers and the charges were not separately proved against the petitioner. It is submitted that the petitioner was not granted an opportunity to appeal against the order of stoppage of his two increments. It is submitted that the petitioner was not served with an enquiry report and, hence, the order of stoppage of increments is liable to be set aside.
4. Shri Dharmadhikari, the learned Assistant Government Pleader appearing for the State Government, has supported the order of the Maharashtra Administrative Tribunal. It is submitted that the Tribunal has rightly considered the submissions made on behalf of the petitioner. It is submitted that the petitioner had not argued before the Tribunal that the findings of the enquiry officer are perverse as the said submission does not find place in the order of the Tribunal. It is stated that even otherwise, on a perusal of the enquiry report, it could be revealed that the findings of the enquiry officer are not perverse and are based on the evidence tendered by the respondents. It is submitted that this is not a case of 'no evidence' and on the basis of the evidence on record, the enquiry officer has rightly found that most of the charges levelled against the petitioner were proved. It is submitted that a finding ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:29:33 ::: WP 4668/03 4 Judgment of fact was recorded by the Tribunal that the enquiry was conducted in a fair and proper manner and the principles of natural justice were not violated. It is submitted that in view of the law laid down by the Hon'ble Supreme Court in the judgment reported in (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad & Others Versus B. Karunakar & Others), the order of punishment cannot be vitiated only because the enquiry report was not served on the petitioner. It is submitted that since the order, dated 30.10.1985 was passed by the Governor and the Hon'ble Governor is the highest authority to which an appeal or revision could be made, there was no scope for challenging the order of the Governor in an appeal or revision. It is submitted that all the aspects of the matter are rightly considered by the Tribunal before dismissing the original application filed by the petitioner.
5. On hearing the learned counsel for the parties and on a perusal of the impugned order, it appears that there is no scope for interference with the impugned order in exercise of the writ jurisdiction. It appears that the enquiry was conducted against the petitioner in a fair and proper manner and the principles of natural justice were not violated. Ample evidence was tendered on behalf of the respondents to prove the charges against the petitioner. Most of the charges levelled against the petitioner are proved. The charges are grave and serious. It is held by the enquiry officer that the petitioner was totally negligent in the ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:29:33 ::: WP 4668/03 5 Judgment performance of his duties. The Tribunal has considered the enquiry report and has held that the Tribunal cannot sit in appeal over the findings of enquiry officer. The Tribunal has rightly held that the findings could be reversed only if they are perverse. The Tribunal has considered the enquiry report and has found that the findings recorded by the enquiry officer are based on the evidence on record. Though the learned counsel for the petitioner stated that a submission was made on behalf of the petitioner in regard to the perversity of the findings recorded by the enquiry officer, we do not find that the submission is made by the petitioner before the Tribunal. Paragraph 5 of the order of the Tribunal records the submissions made on behalf of the petitioner. In the longish paragraph, though the Tribunal has recorded several submissions made on behalf of the petitioner, we do not find any submission pertaining to the perversity of the findings recorded by the enquiry officer. It is well settled that it would not be permissible for a party to canvas before the superior Court that the subordinate Court or Tribunal has not considered the submissions made on behalf of the said party though those submissions do not find place in the order of the Court or the Tribunal. It is well settled that in such a situation it would be necessary for the party to approach before the same Court or Tribunal and register its grievance about its failure to record the submission made by the party, in the order. Be that as it may, we find on a perusal of the enquiry report that the ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:29:33 ::: WP 4668/03 6 Judgment findings of the enquiry officer are not perverse and they are based on the evidence tendered by the respondents.
6. Likewise, we also do not find any merit in the submission made on behalf of the petitioner that the petitioner was not granted an opportunity to file an appeal or revision against the order of stoppage of the increment for two years with cumulative effect. On a reading of the provisions of Rule 25 and 25-A of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, it is clear that an appeal or revision could be filed before the Governor or any other authority subordinate to the Governor. In this case, the order of stoppage of increment was passed by the Governor and therefore, there was no question of challenging the order in an appeal or revision under the Rules. The Tribunal was justified in holding that no appeal would lie against the order of stoppage of increment as it was passed by the Governor. Also, we find that several charges are separately proved against the petitioner and there is no merit in the submission that the charges are not so proved. The Tribunal had rightly considered the judgment in the case of Managing Director, ECIL Hyderabad Versus B.Karunakar and Others reported in (1993) 4 SCC 727 to hold that the disciplinary proceedings in the case of the petitioner could not have been reopened only because the enquiry report was not furnished to the petitioner. The Tribunal considered the decision of the Hon'ble Supreme Court in the case of B.Karunakar and others to hold that ::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:29:33 ::: WP 4668/03 7 Judgment the order of punishment imposed on the petitioner could not have been set aside on the ground that the enquiry report was not furnished to the petitioner as the order of punishment in the case of the petitioner was passed before the decision was rendered by the Hon'ble Supreme Court in the case of Union of India & Others Versus Mohd.Ramzan Khan reported in (1991) 1 SCC 588. As the said finding is based on the decision of the Constitution Bench of the Hon'ble Supreme Court in the case of B.Karunakar and others, there is hardly any scope for interference with the same.
7. Since the order of the Tribunal is just and proper, the writ petition is dismissed with no order as to costs. Rule stands discharged.
JUDGE JUDGE
APTE
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