Chhotalal Gajanan Khole vs Municipal Corporation Of Greater ...
2001 Latest Caselaw 140 Bom

JUDGMENT

R.J. Kochar, J.

1. The petitioner, a Municipal servant, is aggrieved by an order dated 2-4-1997 of his reversion from the post of Ward Inspector as a Clerk by way of punishment. The petitioner has also given challenge to the subsequent order passed by the Appellate Authority dismissing his appeal against the aforesaid order.

2. The petitioner was confirmed as Ward Inspector on 1-4-1984. A chargesheet was served on him on 13-4-1992 whereby a charge of gross negligence and gross misconduct was levelled against him. The statement of allegations reflects that he did not complete the work of inspection of properties required under section 21 of the B.M.C. Act, before November 1989 as per procedure. It was alleged that there were 350 properties which were not inspected whereby the caused to the Corporation loss of revenue to the tune of Rs. 93,710/-. These two charges are reproduced herein below :---

1. "That while working as Ward Inspector in P/South Ward, you were required to complete the work of inspection of properties of section 21 before November 89 as per procedure. However, you handed over the list of 350 properties to your Supdt. on 8-2-1990 without furnishing required documents as a result of which, the properties in question remained un-inspected and T.W.R.S. could not be submitted before 31-3-1990 and thereby Corporation sustained the loss of revenue to the tune of Rs. 93,710/- per annum.

2. That despite several directions from your superiors, you did not produce your field book to your superior. The Inspection Register of section 21 for the years 89-90 and 90-91 were also blank which show that you failed to take necessary entries in the register and also failed to inspect the properties of your section.

The above acts on your part amount to gross negligence and gross misconduct."

At this stage itself I may mention here that the charge levelled against the petitioner is based on the field books, TWRs and Inspection Registers for the relevant period. They would speak for themselves without much oral evidence against or for the petitioner. It has also emerged from the subsequent events brought on the record that all these documents were seized from the table of the petitioner in his absence when he was on sanctioned leave for two days, by an unusual method of breaking open his lock by his superior and the other co-delinquent officer Shri Pote. And the petitioner has lodged a complaint on the very same day when he reported for duty and found the record missing from his table. In these astonishing circumstances he was called upon to meet the charge to show that he had done his work of writing the Field Books and the Inspection Registers which were taken away from his lawful custody unlawfully.

The petitioner submitted his reply by his letter dated 11-7-1992 and denied the charges levelled against him and he explained the true position that he had completed his work as usual and that there was no negligence committed by him in his duties. He further pointed out that the work of inspection of properties which he had done is reflected in the two Field Books which were issued to him and which he had maintained and written during the course of his duty. It was also pointed out by the petitioner that on the basis of the Field Book it was Shri Pote who was supposed to prepare Tabulated Ward Reports (TWR). On receipts of such TWRs back it was the duty of petitioner to complete the Inspection Register. If there was any delay to complete the Inspection Register it was on account of delay in receipt of the TWRs. The petitioner further explained that the Field Books which he had written day to day would reveal that he had inspected the properties and had made clear observations therein regarding changes, additions and alterations in the properties and he had also submitted along with the field books rent receipts obtained by him from the tenants occupying the properties.

3. Not satisfied with the aforesaid explanation given by the petitioner the respondent instituted a departmental enquiry. The respondent examined their witnesses and recorded the defence statement of the petitioner. The Enquiry Officer recorded the findings of guilt as against the petitioner. He was issued a show cause notice which was replied by the petitioner. The Enquiry Officer had proposed removal of the petitioner from service while the disciplinary authority did not accept the said recommendation but imposed a punishment of his reversion to the post of a clerk by the impugned order dated 2-4-1997. It appears that the petitioner had filed a review petition on 19-9-1997 which was treated as an appeal and the Addl. Municipal Commissioner being the competent authority decided the said appeal against the petitioner by his order dated 21-4-1998. It further appears that the petitioner was not communicated this order by the appellate authority. He was however communicated a memo dated 27-5-1998 whereby it was recorded that the appeal was dismissed by an order dated 21-4-1998. On 18-5-1998 he made an appeal to the Mayor-in-Council, which was finally dismissed by the Municipal Commissioner on 25-6-1999. Its conclusion only was communicated to him by a memo dated 31-7-1999. According to him he was never communicated the full text of any appellate orders and therefore he did not know the reasons of rejection of his appeals.

4. The main grievance of the petitioner is that the enquiry was in blatant violation of the principles of natural justice and the rules framed by the respondent Corporation. The petitioner's complaint is that after receipt of the charge sheet he had demanded the following documents :---

(1) T.W.R. copies for 350 properties for the year 1990-91 and 1989-90 of section 21 of P/South Ward.

(2) Field Book of the Superintendent, Shri G.N. Pote, for the year 1989-90 and 1990-91.

(3) Field Book issue Register.

(4) Inspection Book of section No. 21 (Form No. 12) for the year 1988-89, 89-90, 90-91 of P/South Ward.

(5) Inward Register of Ward Office of 8-5-85, (P/South Ward), 8-6-85, 17-7-87 and 19-3-1990, 22-3-1990.

(6) Inward Register of Municipal Commissioner 17-7-87, 13-3-90, 22-3-90.

(7) Inspection of properties belonging to B.H.A.D. Board for the year 1985-86 onwards showing additions and extensions and change in use, change in rent, etc. (inspected by Rent Collectors each and every structure situated in P/South Ward Office in the month of Dec. 85) (December 1985).

According to him inspite of repeated requests he was not furnished with the copies of those documents nor was he allowed to take inspection. The petitioner was denied adequate and reasonable opportunity to defend himself before the Enquiry Officer. In the absence of these documents he could not defend himself and could not prove his innocence. Shri Ghokhale, the learned Counsel for the petitioner has submitted that the charge against the petitioner was that he had not performed the duty of inspection of the properties and he had not completed the work of writing inspection books. According to the petitioner he had inspected the properties and had recorded the same in his field book. Shri Ghokhale also pointed out that the next stage after the field book was inspection of the field books by his superior Shri Pote. He has sent the field books every week. It was Shri Pote, who was to prepare TWRs and send them to the petitioner. Without the TWRs inspection books could not be completed. Shri Ghokhale had also pointed out that, time and again the petitioner had addressed letters about the various irregularities in the working of the department. Shri Ghokhale has pointed out that in the absence of these documents the petitioner had no opportunity of proving his innocence and disproving the allegation that he had not inspected the properties. From these relevant documents it would have been clearly proved that the charge levelled against the petitioner was false and fabricated. The field books would have proved that he had inspected the properties. And field books would also have proved that his superior had counter signed the work done by the petitioner. The TWRs would have proved the fact when his superior had sent TWRs on the basis of which the preparation of the inspection book was to be made by the petitioner.

5. From the entire record it is clear that the petitioner has been demanding those very documents to disprove the charge that he had not done the work of inspection of the properties. I fail to understand why these documents were not made available to the petitioner. If copies of the field books could not be given these field books should have been made available to the petitioner at the time of the enquiry. He ought to have been given inspection of the documents if copies were not feasible to be given. There is another aspect to this matter. In the absence of these very documents I fail to understand how the charge of gross negligence could have been proved against the petitioner. To prove the charge that the petitioner had not carried inspection of the properties these field books were the basic evidence against the petitioner. The petitioner has made out the case that he was issued two field books and he had completed his work by writing those field books on the spot visits. Had these field books been produced before the Enquiry Officer that would have proved or disproved the case against the petitioner. The petitioner himself was demanding those very documents but for the reasons best known to the authorities in the Corporation those documents were not produced before the Enquiry Officer. It is elementary and it is simple that if the petitioner had not done work his field books would have reflected the same. If the inspection books were not written that fact also would have been reflected in the inspections books. If the TWRs were sent to the petitioner and still the inspection books were not completed that fact also would have been cleared if the TWRs were produced before the Enquiry Officer. All these crucial, important and relevant material was kept back from the petitioner and from the Enquiry Officer. Surprisingly even the Enquiry Officer did not apply his mind to this aspect and had casually passed an order "that the petitioner may get those documents from the concerned wards". It was the primary duty of the Enquiry Officer to have directed the prosecution to produce those documents in the enquiry and keep them ready for inspection of the petitioner and also to prove the charges. The Enquiry Officer also ought to have seen for himself whether the field books were completed and whether the inspection books were not completed even after the receipt of TWRs. The Enquiry Officer also could have seen for himself whether the TWRs were prepared by the superior of the petitioner and forwarded to the petitioner for further course of action of writing inspection books. I fail to understand how in the absence of these documents and this material the petitioner has been found guilty of the charge of not doing his work which according to the petitioner is reflected in his field books and the inspection books. These documents were relevant and necessary to bring home the charge levelled against the petitioner. In the absence of these documents it cannot be said that the enquiry is fair and proper and that the findings are just and fair. No reasonable man could have come to a conclusion that the petitioner was guilty of the charge levelled against him in the absence of these very relevant and necessary documents. Even if the petitioner had not demanded those documents it was in fact necessary for the Enquiry Officer to find out and to decide whether the petitioner had done his work or not. This was the primary evidence for the prosecution to prove the charge against the petitioner which was not placed before the Enquiry Officer inspite of the requests made by the petitioner.

6. Both the learned Counsel, Shri Ghokhale for the petitioner and Shri Bhor for the respondent respectively have made submissions as under :---

(a) The enquiry is bad in law as the vigilance report on which the Enquiry Officer has relied was not properly proved as the author of the vigilance report was not examined though he was available. One Shri Zarapakar who had not prepared this vigilance report was examined and therefore there could be no meaningful and effective cross examination on the vigilance report. The Enquiry Officer has specifically relied on this vigilance report. The chargesheet is also based on this vigilance report therefore it was necessary to have been examined the author of the vigilance report.

(b) Assuming that the charge of gross negligence was proved the petitioner has explained the various circumstances and the constraints of work under Shri Pote who himself did not complete his work in time and the petitioner's work was depending on the work of Shri Pote. The petitioner could not be held liable for delay in completion of inspection books. The preparation of the inspection books by the petitioner depended on the receipt of TWRs which were to be prepared by Shri Pote, his superior. As he did not prepare the TWRs in time the preparation of the inspection book being the next stage suffered. It was not the petitioner who was responsible for such delay in completion of the inspection books. According to Shri Ghokhale, the punishment of reversion to a lower post was unwarranted and totally disproportionate.

(c) Shri Ghokhale has further pointed out that the petitioner had received appreciation letters for doing good work to increased the municipal revenue. According to Shri Ghokhale, it cannot be said that the petitioner did not do work to cause loss of revenue to the Corporation. Shri Ghokhale has also pointed out that in view of the complaints made by the petitioner against the irregular working of the department the petitioner was being victimised.

Shri Bhor the learned Counsel for the Corporation has justified the order of punishment. He has tried to support the reasoning given by the Enquiry Officer that the documents were not relevant and material. According to Shri Bhor the charge of gross negligence was proved and therefore this Court should not interfere under Article 226 of the Constitution of India, says Shri Bhor.

7. The respondents have adopted a very strange procedure in the disciplinary proceedings. Before issuing a chargesheet to the petitioner he was required to give his statement in minute details which runs into more than six typed pages. It further appears that after recording his statement on 19-3-1991 a statement of another delinquent Shri Pote was recorded. The petitioner had grievance against Shri Pote, who was his superior. It appears that the Investigating Officer submitted his report on 19-9-1991 and thereafter there is a statement of one Shri S.T. Dongre and then report by the Vigilance Officer Shri Zarapkar. The petitioner was chargesheeted and was required to submit his written explanation once again. He has been repeatedly saying that his table was searched in his absence when he was on leave for two days and field books and the inspection books were removed. He has been all along demanding production of inspection of the field books, TWRs and inspection books. According to him, Shri Pote had opened his table in his absence and had removed those important documents. The petitioner was no leave on 20-3-1990 and 21-3-1990. When he reported on the next day i.e. on 22-3-1990 he found his table emptied by Shri Pote and the petitioner had immediately lodged a complaint about the loss of his field books and inspection books from the working table. He has repeated this fact in his written explanation dated 11-7-1992 to the chargesheet. He has again stated all the facts and the relevance of the documents which were not produced, in his final statement of defence dated 14-11-1994. In reply to the show cause notice he has further pointed out how the Enquiry Officer refused to direct the prosecution to produce the relevant documents. This fact was recorded in the proceedings on 18-9-1992 at his insistence to record the said fact in the minutes. It is therefore clear that the respondents had suppressed the material documents from the enquiry. Nor did the Enquiry Officer find it proper to order production of those documents which would have independently proved the charges levelled against him if at all he was guilty and on the contrary he would have been proved innocent from those very documents. Shri Ghokhale has relied on the Manual of Departmental Enquiries prescribed for the guidance of the Enquiry Officer as well as the delinquents. I have gone through the entire Manual, it is nothing but codification of the principles of natural justice to be strictly observed in the enquiry by the Enquiry Officer. In the present case the Enquiry Officer has observed those rules in breach only. Had the Enquiry Officer carefully gone through the manual and particularly Clause 29 he would have ordered first the production of those documents which were required repeatedly by the petitioner. Clause 29 reads as under :

"29. Copies of the relevant documents, if any, should be supplied to the person charged free of cost along with the charge sheet and the statement of allegations as far as practicable. Copies of recorded statement, if any, should also be supplied. If it is not practicable to supply copies the person charged may be allowed to take copies or have copies made at his cost and all reasonable facilities shall be given to him to enable this to be done. Copies of documents and statements which are not to be used against the person charged need not be supplied or allowed to be taken. In dealing with request for copies of relevant documents as liberal a view as possible should be taken since the person charged can put forth the plea that he was handicapped in preparing his defence for want of the documents".

8. I, therefore, hold that the departmental enquiry held against the petitioner is vitiated being in utter disregard and blatant violation of the principles of natural justice. In the absence of these documents no misconduct can be said to have been proved. The findings recorded by the enquiry officer in the absence of these documents are baseless and perverse and cannot be sustained even for a minute. Secondly, the order passed by the appellate authority in the appeal also is held to be illegal and improper and the same is quashed and set aside. The appeal being a statutory appeal provided under the rules the appellate authority was bound to record its reasons for dismissing the appeal and communicate the whole decision to the appellate. The petitioner was communicated only the operative order of the appeal and therefore he was at loss to know the reasons for or grounds on which his appeals was dismissed. The appellant is entitled to receive a full text of the decision of the appellate authority. Even the appellate authority appears to have confirmed the perverse finding of the enquiry officer and even it has not applied its mind to the fact of the relevant documents which were not on the record of the enquiry.

9. The impugned order of reversion or demotion reverting the petitioner to the post of clerk therefore is quashed and set aside. The petitioner would be entitled to be restored as Ward Inspector with retrospective effect and he will get all his consequential benefits including the differences in emoluments. He would also be entitled to be considered for further promotion in accordance with law.

10. In the circumstances and for the reasons recorded above the rule is made absolute in terms of prayer Clauses (a) and (b). No order as to costs.

11. All concerned to act on an ordinary copy of this order duly authenticated by the Associate of this Court.

12. Shri Bhor applies for stay of the order. In the circumstances, stay is refused.