1 050118 Judg. wp 3124.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.3124 of 2002
Devidas Anandrao Dafe,
Aged about 70 years, Occ.-Retired,
Deputy Collector, R/o.-Paranjape Colony,
Camp Amraoti. .... Petitioner.
-Versus-
1] The State of Maharashtra
through the Secretary,
Revenue and Forest Department, Mantralaya, Mumbai-32.
2] The Divisional Commissioner, Amravati Division,
Amravati. .... Respondents.
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Shri M.M. Sudame, Adv for petitioner.
Mrs. Mehta, AGP for respondents.
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Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 05th January, 2018.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.) The order delivered by the Maharashtra Administrative Tribunal [MAT] on 20-03-2002 in Original Application No.649 of 1998 dismissing it has been questioned by the petitioner-retired Deputy Collector before this Court. Before MAT, he questioned order dated 20-05-1998 passed by the State Government reducing his pension by Rs. 100/- per month for period of two years as a disciplinary measure.
2] Learned Advocate Shri Sudame, at the threshold, pointed out that presently the petitioner is above 85 years of age and is more concerned about ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:10:49 ::: 2 050118 Judg. wp 3124.02.odt reputation or stigma and is not interested in recovery.
3] By placing reliance upon the judgment of Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar vs. Union of India and others, reported at AIR 1999 SC 2882 in paragraphs 29, 40 and 43 as also other judgment of Hon'ble Apex Court in the case of P.C. Joshi vs. State of U.P. and others, reported at AIR 2001 SC 2788 in paragraphs 5 and 7, learned Advocate Shri Sudame claims that charges no.2 and 3 are found to be established, blaming the petitioner to pay some amount extra over and above the market value towards compensation of acquired land. He submits that against charge no.3 the amount in excess as pointed out is meagre. However, determination of amount of compensation is a quasi judicial function and according to him unless and until there is an allegation of some extraneous consideration, the charge itself cannot be said to be constituting a misconduct. He has taken us through the relevant details/papers produced on record for the said purpose.
4] Without prejudice, he also adds that the Enquiry Officer, when he submitted his report, exonerated the petitioner of all eight charges. The State Government as a Disciplinary Authority, found that the charges no. 2 and 3 are proved. It, however, did not give the petitioner an opportunity to demonstrate otherwise and on 08-10-1996 served upon him a notice under Section 27(1) of the Maharashtra Civil Services (Pension) Rules, 1982 as to why his monthly pension should not be reduced by Rs. 100/- per month for period of two years. Thus, having made up a mind to impose punishment with that intention, the State Government extended the petitioner an opportunity to demonstrate only on quantum of punishment.
5] He fairly states that without raising any objection in this respect the petitioner then replied to it. On 11-07-1997, after considering that reply the ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:10:49 ::: 3 050118 Judg. wp 3124.02.odt State Government has passed impugned order. He has invited our attention to the judgments of this Court in the case of Shri Vasant Narayan Damle vs. The Honourable Chief Justice and another, reported at 2003(1) ALL MR 508, judgments of Hon'ble Apex Court in Yoginath D. Bagde vs. State of Maharashtra and another, reported at (1999) 7 SCC 739 and Managing Director, E.C.I.L., Hyderabad vs B. Karunakar (II), reported at 1994 Supp (2) SCC 391 to buttress this submission.
6] In reply, the learned AGP, submits that as the State Government found charges no. 2 and 3 to be proved, it has imposed the punishment which is very lenient. Considering the fact that the petitioner had already retired, only a small amount of his monthly pension has been reduced that too for period of two years. She relies upon return filed before this Court to urge that when facts prima facie demonstrate payment of compensation which is not reasonable, the order passed by the MAT cannot be said to be suffering from any jurisdictional error. Hence, this Court should not intervene in the matter.
7] The charge-sheet dated 29-06-1992 shows total 8 charges levelled against the petitioner. As charges no.2 and 3 are only found to be proved by the Disciplinary Authority and punishment imposed is only for charges no.2 and 3, we are not required to look into the other allegations. Charge no.2 is in relation to award delivered in land acquisition proceedings of village Dewurwadi on 29-03-1989. It is mentioned that the average rate per hectare arrived at was Rs. 5190/-, but the petitioner considered the higher rate of Rs. 7500/-. The petitioner, thereafter, gave 15% hike and determined the rate of land at Rs. 11,500/- per hectare. The hike given is more by 50% and therefore wrong. This has resulted in payment of amount of Rs. 2000/- per hectare more. It is further mentioned that on this increased amount ' Hkw HkkMs ' i.e. land rent has been given at 12% for first year though it ought to have been only 9%. This ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:10:49 ::: 4 050118 Judg. wp 3124.02.odt has resulted in excess payment of Rs. 1500/-.
8] Against charge no.3, it is mentioned, that in land acquisition proceedings at village Umri Patan award delivered on 14-03-1988, when average market rate was Rs. 3695/- per hectare, the petitioner determined rate of Rs. 6,000/- per hectare. He, therefore, took a rate which was in excess by Rs. 3,750/- per hectare. It is also added that generally, in said case, the rate per hectare should have been determined at Rs. 4500/- to Rs. 5000/- but then the petitioner gave rate of Rs. 6000/- per hectare and hence paid Rs. 1000/- per hectare more.
9] The petitioner has replied to these charges on 03-04-1992. While replying to charge no.2 he has mentioned that while attempting to give just compensation to land owners, and considering the demand of owners to pay them compensation at the rate of Rs. 20,000/- per hectare, the rate of Rs.10,000/- per hectare determined by him is not in excess. On said rate for period of one and half year, he gave proportionate increase of 15% and determined the land value at Rs.11,500/-. He has further explained that as no advance was paid to any land owner the charge that land rent should have been paid at 9% is incorrect. As against charge no.3, he has submitted that when his employer felt that rate should have been between Rs.4,500 and Rs. 5000/- per hectare, Rs. 6000/- per hectare determined by him was not excessive.
10] Considering his reply and evidence brought on record the Enquiry Officer submitted a report and exonerated the petitioner of all charges. The State Government on 08-10-1996 sent petitioner a communication on the quantum of punishment. The punishment actually imposed has been shown therein as proposed punishment and he has been given time of one day to point out why the said punishment should not be inflicted upon him. In this notice or ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:10:49 ::: 5 050118 Judg. wp 3124.02.odt communication, the State Government has mentioned that it has not accepted the findings recorded by the Enquiry Officer. It has found that against charges no.2 and 3 relating to excess payment of compensation for acquired land, the petitioner accepted that while determining the compensation, he has considered sale instances of adjacent land, however, he has given compensation which is much more than the sale instances. The said communication also observes that the contention that to avoid stamp duty less sale consideration is mentioned in sale deed, was not relevant and could not have been accepted.
11] The petitioner has not made available to us reply submitted by him to this communication on 11-07-1997. Perusal of order of punishment dated 20-05-1998 shows that the order runs into total 8 pages and up to half portion of page no.7 there is reproduction of charge-sheet and the above mentioned communication dated 08-10-1996. In paragraph 5, in lower half of page no.7, reply given by petitioner on 11-07-1997 has been mentioned. However, its contents are not reproduced there and there is no reflection upon it. It appears that the petitioner had sought opportunity of personal hearing but by order of punishment it has also been rejected. Thus, apart from mentioning the fact of explanation furnished by the petitioner on 11-07-1997, his defence in respect of charges no.2 and 3 does not find any consideration.
12] Thus, when the Enquiry Officer exonerated the petitioner of all charges, the Disciplinary Authority has differed with his findings on charges no.2 and 3 and without extending any opportunity to the petitioner has then proceeded to impose punishment as mentioned supra. Law on this point is well settled. The judgments in the case of Shri Vasant Narayan Damle and in the case of Yoginath Bagde (supra) show that when the Disciplinary Authority disagrees with the findings of Enquiry Officer it has to briefly record its reasons for such disagreement and communicate the same to the delinquent. The delinquent ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:10:49 ::: 6 050118 Judg. wp 3124.02.odt then is to be given opportunity to submit his defence on those reasons. The Disciplinary Authority thereafter has to come to the conclusion whether to treat those charges as proved or not.
13] The judgment of Hon'ble Apex Court in the case of Managing Director, E.C.I.L., Hyderabad (supra) shows that service of show cause notice on the quantum of punishment is not part of principles of natural justice. The notice necessarily has to be on the findings recorded by the Enquiry Officer. If the findings of the Enquiry Officer are in favour of delinquent and Disciplinary Authority accepts it, it is apparent that there can be no punishment and hence no notice. However, when the findings of Enquiry Officer are adverse and Disciplinary Authority proposes to use the same, the principles of natural justice oblige the Disciplinary Authority to serve employee with a show cause notice and give him opportunity to explain why such findings should not be accepted and acted upon by the Disciplinary Authority. Here, as the Disciplinary Authority has disagreed with the findings of Enquiry Officer in relation to charges no.2 and 3, before making up mind to impose punishment, it ought to have given the petitioner an opportunity to show cause as to why those findings should not be disregarded. In that event, the petitioner would have gathered reasons prompting Disciplinary Authority to differ and submitted appropriate effective representation. The said procedure has not been followed in present matter.
14] The judgments cited by learned Advocate Shri Sudame in the case of Zunjarrao Bhikaji Nagarkar and in the case of P.C. Joshi (supra) could have been relevant while examining such an explanation submitted by delinquent had an opportunity been extended to him by the Disciplinary Authority, and in that event, it could have looked into the reasons submitted by the petitioner to find out why the conduct labelled as misconduct in charges no. 2 and 3 cannot be the subject matter of departmental enquiry. As that opportunity has been denied ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:10:49 ::: 7 050118 Judg. wp 3124.02.odt to petitioner, we are not required to comment upon the judgment delivered by Hon'ble apex Court or on the contentions of learned Advocate Shri Sudame in this respect.
15] The learned Advocate for the petitioner has fairly stated that the petitioner is only interested in expunging of stigma so that his reputation is restored and the punishment, if any, could not have been imposed by adhering to procedure prescribed by law but that procedure has not been followed in the present matter. We are aware that when the punishment in departmental enquiry is set aside on such technical ground, the matter needs to be sent back to the Disciplinary Authority. Here, the petitioner has already suffered that punishment and he is also not claiming any recovery on that count. The petitioner is above 85 years of his age. Therefore, it will not be just and proper to remand the matter back to the Disciplinary Authority.
16] In view of this discussion, we quash and set aside the order of punishment dated 20-05-1998. However, it is made clear that the petitioner shall not be entitled to claim any amount or recovery of any amount because of its setting aside.
17] Writ petition is thus partly allowed and disposed of.
18] Rule is made absolute in above terms. No costs.
JUDGE JUDGE
Deshmukh
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