WP 6470/11 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 6470/2011
Dharmendra S/o Gopalrao Dudhe,
Aged 40 years, Occupation Nil,
R/o Jaibhim Nagar, Behind Corporation
Library, Babulkheda, Nagpur. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through Principal Secretary,
Home Department,
Mantralaya, Mumbai - 32.
2. The Commissioner of Police,
Nagpur city, Civil Lines, Nagpur. RESPONDENTS
Shri V.M. Moon, counsel for the petitioner.
Shri A.S. Fulzele, Additional Government Pleader for the respondents.
CORAM :SMT.VASANTI A NAIK AND
V.M. DESHPANDE, JJ.
DATE : 14 TH MARCH, 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 08.09.2011, dismissing the original application filed by the petitioner.
2. Few facts giving rise to the petition, are stated thus:-
The petitioner was appointed as a police constable on 09.09.1991 and was posted at Nagpur. On 06.02.1998, the petitioner was suspended after a criminal complaint was filed against him by Ku.Bebinanda Ganar at Police Station Ajni for the offences punishable under Sections 294, 506-B and 34 of the Indian Penal Code. During the ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:59:52 ::: WP 6470/11 2 Judgment period of suspension, the petitioner was charge-sheeted and two charges were levelled against the petitioner. According to the respondents, the petitioner had developed intimacy with Bebinanda by taking advantage of her helplessness and had developed physical relationship with her. It was alleged that though it was the responsibility of the petitioner as a police constable to assist the helpless, he had taken advantage of the helplessness of Bebinanda and committed an act that was unbecoming of a policeman. The petitioner denied the charges and stated that he had desired to marry Bebinanda but, on securing the knowledge that a divorce petition was pending between Bebinanda and her husband, he had dropped the idea of marrying her. According to the petitioner, a false police complaint was lodged by Bebinanda against him. The enquiry officer conducted an enquiry and after examination of the witnesses and on a consideration of their evidence, the enquiry officer found that the charges levelled against the petitioner were proved. A show cause notice was served on the petitioner in regard to the proposed punishment of removal of the petitioner from service. The petitioner replied to the show cause notice and requested the respondents that a minor punishment be inflicted on him in the circumstances of the case. The disciplinary authority, however, passed an order of compulsorily retiring the petitioner from service, dated 03.03.2000. The petitioner filed two departmental appeals against the said order but, without success. The order of the disciplinary authority was challenged by the petitioner before ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:59:52 ::: WP 6470/11 3 Judgment the Maharashtra Administrative Tribunal. The Maharashtra Administrative Tribunal, on an appreciation of the material on record, dismissed the original application filed by the petitioner.
3. Shri Moon, the learned counsel for the petitioner, submitted that the Maharashtra Administrative Tribunal failed to consider that the punishment imposed on the petitioner was extremely harsh and disproportionate to the act of misconduct proved against him. It is submitted that the petitioner had pointed out before the enquiry officer as well as the disciplinary authority that Bebinanda had filed the complaint against the petitioner with vengeance as he was not ready to marry her after he became aware that a divorce petition between Bebinanda and her husband was pending. It is submitted that Bebinanda had filed civil proceedings against the petitioner, seeking a permanent injunction restraining him from marrying any other woman and in those proceedings, it is held by the civil Court that Bebinanda had sworn a false affidavit and the verification of the facts by Bebinanda was false and incorrect. It is stated that the civil Court had even directed action against Bebinanda for filing the false affidavit. It is submitted that though there was some cordial relationship between the petitioner and Bebinanda as he had decided to marry her, the marriage could not be solemnized with Bebinanda as the proceedings between Bebinanda and her husband were pending. It is stated that the petitioner was made a scapegoat and on a ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:59:52 ::: WP 6470/11 4 Judgment complaint filed by Bebinanda, the petitioner is compulsorily retired from service. It is submitted that the service record of the petitioner was otherwise unblemished and on a false complaint of Bebinanda, the petitioner was victimized and a major punishment was inflicted on him. It is submitted that in the circumstances of the case, it would be necessary to send the matter to the respondents for imposing a lesser punishment on the petitioner. It is stated that if the petitioner is reinstated in service, the petitioner would not claim the arrears of salary for the period during which he was out of service. It is stated that in the circumstances of the case, when it is apparent that Bebinanda had made the petitioner a scapegoat, a direction to the respondents to impose a lesser punishment on the petitioner should be issued.
4. Shri Fulzele, the learned Additional Government Pleader appearing for the respondents, supported the order of the respondents. It is submitted that the Tribunal has rightly found that there was no flaw in the departmental enquiry conducted against the petitioner and the principles of natural justice were followed while conducting the departmental enquiry. It is submitted that in the circumstances of the case, it cannot be said that the punishment imposed upon the petitioner is harsh and disproportionate to the charges proved against him. It is, however, admitted by the learned Additional Government Pleader on a reading of the documents annexed to the petition that it ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:59:52 ::: WP 6470/11 5 Judgment appears from some of the orders of the civil Court that Bebinanda had filed a false affidavit and had falsely pleaded against the petitioner in the civil proceedings that were filed against him for an order restraining him from marrying any lady, other than Bebinanda.
5. On hearing the learned counsel for the parties and on a perusal of the documents annexed to the petition, it is apparent that the punishment imposed upon the petitioner appears to be extremely harsh and disproportionate to the misconduct proved against the petitioner. The criminal proceedings that were instituted against the petitioner have resulted in the acquittal of the petitioner. Even in the civil proceedings filed by Bebinanda, it appears that the trial Court has made serious observations in respect of the falsity of the statements made by Bebinanda in her pleadings and her verification. The civil Court has gone to the extent of contemplating action against Bebinanda in view of the falsity of the statements made before the Court. In the instant case, the petitioner had come up with a clear case that he had desired to marry Bebinanda but, when he became aware, after going to the parental house of Bebinanda to have a talk in respect of the marriage, about the pendency of the divorce proceedings between Bebinanda and her husband and had, therefore, refused to marry Bebinanda. Though the charges levelled against the petitioner are proved in the departmental enquiry, it appears that the charges levelled against the petitioner in the criminal proceedings ::: Uploaded on - 15/03/2017 ::: Downloaded on - 16/03/2017 00:59:52 ::: WP 6470/11 6 Judgment are not proved by the prosecution and even in the civil proceedings filed by Bebinanda, it is held by the civil Court that Bebinanda had approached the Court with a false case against the petitioner. The petitioner had worked for nearly ten years as a police constable with unblemished service record and in our view, even if the charge levelled against the petitioner was proved, the respondents could not have compulsorily retired the petitioner from service. In our view, it would be necessary for the respondents to impose a lesser punishment on the petitioner. In the circumstances of the case, the punishment is shockingly disproportionate to the misconduct proved against the petitioner. Hence, in view of the settled position of law, we are inclined to remand the matter to the respondents so as to impose a lesser punishment on the petitioner.
6. Hence, for the reasons aforesaid, the writ petition is partly allowed. The original application filed by the petitioner is partly allowed. The order of the Tribunal is hereby modified. The respondents may impose a lesser punishment on the petitioner in accordance with law. The necessary action in this regard should be completed within three months.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
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