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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2917 OF 1998
Delansingh s/o Surajlal Turkar,
Aged 61 years,
Occupation - Retired Head Master,
R/o at Post Kathi, Tahsil - Gondia,
District - Bhandara. .... PETITIONER
VERSUS
1) State of Maharashtra,
through Secretary, Department of
Rural Development, Mantralaya,
Bombay.
2) Zilla Parishad, Bhandara,
through Chief Executive Officer,
Bhandara.
3) The Chief Executive Officer,
Zilla Parishad, Bhandara.
4) Commissioner,
Nagpur Division, Nagpur. .... RESPONDENTS
______________________________________________________________
Shri A.M. Dixit, Advocate for the petitioner,
Shri A.A. Madiwale, A.G.P. for the respondent Nos.1 and 4,
Smt. M.P. Munshi, Advocate for the respondent Nos.2 and 3.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 6 MARCH, 2017.
th
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ORAL JUDGMENT :
Heard Shri A.M. Dixit, Advocate for the petitioner, Shri A.A. Madiwale, Assistant Government Pleader for the respondent Nos.1 and 4 and Smt. M.P. Munshi, Advocate for the respondent Nos.2 and
3.
2. The petitioner/employee has challenged the orders passed by the subordinate authorities holding him guilty as per charge Nos.3, 4 and 5 framed against him and directing that one increment be withheld permanently and an amount of Rs.16,393.84 be recovered from him and the period under which he was under suspension be treated as suspension period. By the order passed on 07-12-1998, this Court has issued Rule admitting the petition only on the point of recovery of Rs.16,393.84 from the petitioner. This Court had rejected the challenge of the petitioner to the imposition of penalty directing stoppage of one increment permanently and to the order that the period for which the petitioner was suspended be treated as suspension period.
3. In the charge-sheet given to the petitioner, it is not mentioned that the petitioner has misappropriated an amount of ::: Uploaded on - 20/03/2017 ::: Downloaded on - 27/08/2017 19:01:10 ::: 3 wp2917.98 Rs.16,393.84. The learned Advocate for the respondent Nos.2 and 3 has submitted that the charge of misappropriation was levelled against the petitioner on the basis of paragraph No.36 of the audit report which is to the effect that the petitioner, while working as Head Master of the school has committed irregularities in the matter of purchase of articles worth Rs.13,897.84. It is submitted that the petitioner has not rebutted the objection pointed out in the audit report.
4. The submission made on behalf of the respondent Nos.2 and 3 cannot be accepted. As stated earlier, the charge-sheet does not contain a charge against the petitioner that he has misappropriated the amount of Rs.16,393.84. The respondent Nos.2 and 3 have not been able to point out any objection in the audit report to the effect that the petitioner has misappropriated the amount of Rs.16,393.84. The objection in the audit report is that the petitioner committed irregularities in purchases of articles worth Rs.16,393.84.
It is well settled that the charge against the delinquent should be specific and unless it is so, the delinquent cannot be penalised on its basis.
5. The challenge of the petitioner to this part of the orders ::: Uploaded on - 20/03/2017 ::: Downloaded on - 27/08/2017 19:01:10 ::: 4 wp2917.98 passed by the subordinate authorities directing recovery of amount of Rs.16,393.84 from the petitioner is required to be accepted.
6. Hence, the following order :
(i) The impugned order is modified.
(ii) The directions given in the impugned order that amount of
Rs.16,393.84 be recovered from the petitioner are set aside.
(iii) The Advocate for the petitioner has submitted that amount of Rs.16,393.84 is deducted from the retirement benefits. The amount of Rs.16,393.84 shall be paid to the petitioner within two months alongwith interest at the rate of 6% per annum, the interest being chargeable from the date on which the amount is deducted till the amount is paid to the petitioner.
Though the learned Advocate for the respondent Nos.2 and 3 has submitted that the interest cannot be granted as the petitioner has not prayed for it, considering the facts of the case, I am inclined to grant the interest to the petitioner as above.
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(iv) If the amount of Rs.16,393.84 alongwith interest at the
rate of 6% p.a. is not paid to the petitioner within two months, the respondent Nos.2 and 3 will be liable to pay interest at the rate of 12% p.a. on the amount of Rs.16,393.84, the interest being chargeable from the date on which the amount is deducted till the amount is paid to the petitioner.
(v) The remaining order passed by the subordinate authorities directing withholding of one increment permanently and that the period for which the petitioner was suspended should be treated as suspension period is maintained. The petition is disposed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE adgokar ::: Uploaded on - 20/03/2017 ::: Downloaded on - 27/08/2017 19:01:10 :::