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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4508/2011
Shashikant s/o Babulal Kanhai,
aged 53 years, Occ. Service,
R/o Main Road, Katangi Line, Gondia. .....PETITIONER
...V E R S U S...
1. The State of Maharashtra, through
its Secretary, Department of Revenue,
Mantralaya, Mumbai-32.
2. The Divisional Commissioner,
Nagpur Division, Civil Lines, Nagpur-01.
3. The Controller, Office of the Collectorate,
Dist. Gondia. ...RESPONDENTS
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Shri D. T. Shinde, Advocate for petitioner.
Smt. T. Udeshi, Assistant Government Pleader for respondents.
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CORAM:- SMT. VASANTI A. NAIK AND
V. M. DESHPANDE, JJ.
DATED :- MARCH 24, 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 01.09.2009, dismissing the original application filed by the petitioner.
The petitioner was serving as Junior Clerk in the Tahsil Office at Bhandara when a departmental inquiry was conducted against the petitioner on three charges, viz:- ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 :::
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1) That on 12.07.1989 at about 1.30 in the noon, the
petitioner called Kamaldas Shingade (Kotwal) in a loud voice in the verandah of the Tehsil office, pressed the neck of Kamaldas and quarreled with him.
2) That on 18.07.1989 at about 1.00 in the noon, the petitioner behaved arrogantly with Tehsildar, Goregaon by knocking his hand loudly on the table of the Tehsildar, asking the Tehsildar as to why he called the petitioner as 'Gunda' on 12.07.1989 and threatened the Tehsildar by saying that the petitioner is the son of a lawyer, that the petitioner is learning law and that he would teach the Tehsildar a lesson.
3) That the petitioner, during the office time, quarreled and misbehaved with the staff."
The inquiry officer came to the conclusion that the charges 1 and 2 were proved against the petitioner and accordingly a report was submitted to the Collector, Bhandara recommending the punishment. The report of the inquiry officer was accepted by the Collector and by the order dated 27.09.1991, the punishment of withholding of two annual increments was imposed on the petitioner. A departmental appeal was filed by the ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 ::: 3 wp4508.11.odt petitioner against the said order. The Divisional Commissioner, after hearing the petitioner, set aside the order of the Collector and remanded the matter to the inquiry officer, Bhandara for a fresh inquiry after recording the statements of the witnesses and the petitioner. After holding a fresh inquiry, the inquiry officer submitted his report to the Collector on 14.11.1995, holding therein that all the three charges levelled against the petitioner were proved. Again, the punishment of withholding of two annual increments was recommended and by the order dated 27.04.1998, the Collector imposed the punishment of withholding of two annual increments of the petitioner with permanent effect. The suspension of the petitioner was also treated as such. The petitioner filed an appeal before the Divisional Commissioner but the appeal was dismissed. The petitioner then filed an original application before the tribunal, that was also dismissed by the impugned order dated 01.09.2009.
Shri Shinde, the learned counsel for the petitioner submitted that the tribunal was not justified in dismissing the original application filed by the petitioner. It is submitted that after the original application was decided by the tribunal, the petitioner applied under the Right to Information Act and received ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 ::: 4 wp4508.11.odt certain documents which could point out that after the remand of the matter by the appellate authority to the inquiry officer, an inquiry was conducted and as per the second inquiry report dated 31.12.1994, the petitioner was exonerated of the charges. It is submitted that if the disciplinary authority did not agree with the report exonerating the petitioner dated 31.12.1994, it should have recorded some reasons and granted an opportunity to the petitioner to reply to the notice of disagreement. The learned counsel submitted in pursuance of the information secured under the Right to Information Act that on 30.10.1995 the inquiry officer that had prepared the report dated 30.10.1995 was appointed but the petitioner was not made aware of the appointment. The learned counsel relied on the provisions of Rule 9 (2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 as also the judgment of the Hon'ble Supreme Court reported in 2000 (2) Bom. C. R. 658. It is submitted that in the circumstances of the case, since the petitioner was exonerated in the second inquiry by the report dated 31.12.1994, the order of the tribunal as also the orders of the disciplinary and the appellate authority are liable to be set aside.
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5 wp4508.11.odt Ms Udeshi, the learned Assistant Government Pleader for the respondents submitted that the petitioner cannot be permitted to canvass in this writ petition for the first time that after the matter was remanded by the appellate authority, an inquiry was conducted against the petitioner and the petitioner was exonerated on 31.12.1994. It is stated that after the remand of the matter by the appellate authority, the inquiry officer had tendered a report dated 30.10.1995, which holds that all the three charges levelled against the petitioner are proved. It is submitted that before the Divisional Commissioner in the second round of litigation and before the Maharashtra Administrative Tribunal, it is not the case of the petitioner that the petitioner was exonerated by the inquiry officer in any of the enquiries and such a ground is raised by the petitioner for the first time in this writ petition. It is submitted that the counsel for the petitioner is making a submission on factual and legal issues that were not addressed either before the Divisional Commissioner or before the Maharashtra Administrative Tribunal. It is submitted that the petitioner is held guilty of serious charges while he was working as a junior clerk. It is submitted that the petitioner had pressed the neck of Kotwal Kamaldas after quarreling with him, had knocked ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 ::: 6 wp4508.11.odt his hand loudly on the table of Tahsildar and had abused and threatened him. It is submitted that since the conduct of the petitioner was unbecoming of a Government servant, the respondents have imposed the punishment on the petitioner. It is submitted that the tribunal has rightly held that the punishment imposed upon the petitioner, cannot be said to be disproportionate to the act of serious misconduct committed by the petitioner. The learned Assistant Government Pleader sought for the dismissal of the writ petition.
On hearing the learned counsel for the parties, we find that there is no scope for interference with the impugned order in exercise of the writ jurisdiction. For the first time before this Court, the petitioner is trying to state several facts that were not stated either before the Divisional Commissioner or before the Maharashtra Administrative Tribunal. Since, the order of the tribunal is impugned in this petition, it would be necessary to consider whether the tribunal was justified in passing the order that is impugned, on the basis of the material available on record. The material available before the Additional Commissioner as well as the tribunal consisted of only two inquiry reports that is the first inquiry report holding that the petitioner was guilty of two charges ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 ::: 7 wp4508.11.odt levelled against him and the second inquiry report holding that the petitioner was guilty of all the three charges levelled against him. We find that the charges levelled against them are extremely grave and serious. As rightly submitted on behalf of the respondents, the acts on the part of the petitioner are unbecoming of a Government servant. If the petitioner was really desirous of securing the material that could have resulted in proving the innocence of the petitioner before the Divisional Commissioner or the tribunal, the petitioner should have diligently sought the information under the Right to Information Act that has come into force in the year 2005. The original application was decided by the tribunal in the year 2011. Till the original application was decided the Maharashtra Administrative Tribunal in September- 2011, the petitioner did not take any steps to apply under the Right to Information Act. We cannot consider the documents placed by the petitioner in this court to be sacrosanct. In any case, if the petitioner really was of the view that there was something more to the matter than was placed by him before the tribunal, he ought to have sought the information during the period from 2005 to 2011. Six years time is wiled away by the petitioner before the tribunal till the tribunal has decided the matter. The petitioner ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 ::: 8 wp4508.11.odt has retired from service after attaining the age of superannuation and has received the retiral benefits. In the circumstances of the case, we are not inclined to remand the matter to the tribunal to redecide the matter at this stage, specially when the petitioner was not diligent in prosecuting the matter. In any case, the submissions that are made on behalf of the petitioner for the first time are not admitted by the learned Assistant Government Pleader. The judgment reported in 2000 (2) Bom C. R. 658 and relied on by the learned counsel for the petitioner cannot be made applicable to the case in hand.
In the result, the writ petition fails and it is dismissed with no order as to costs.
(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.) kahale ::: Uploaded on - 01/04/2017 ::: Downloaded on - 27/08/2017 20:46:52 :::