The State Of Maharashtra Through ... vs Pradeep S/O Digambar Shankarwar
2003 Latest Caselaw 924 Bom

JUDGMENT

B.H. Marlapalle, J.

1.Being aggrieved by the decision of the Maharashtra Administrative Tribunal, allowing Original Application No. 249 of 1995, reinstating the Respondent Government employee in service, the State of Maharashtra through the Secretary in the Department of Social Forestry, has filed this petition. By the following order dated 13th August, 2002 the Petition was summarily rejected by a Division Bench of this Court (Mhase and Zoting, JJ.):

"Heard Mr. N. B. Khandare, learned A.G.P. for the Petitioners and Mr. Dhage, learned counsel for the Respondent. No interference is called for. Writ Petition is hereby rejected."

2.The State of Maharashtra filed Civil Appeal No. 2776 of 2003 against the order of summary rejection of the Petition and by order dated 4th of April, 2003 the appeal came to be allowed. It would be useful to quote the relevant portion of the order passed by the Apex Court:

"It is contended by the learned counsel for the respondent that the order passed by the High Court was by way of affirming the order of the tribunal and, therefore, absence of reasons by the High Court does not matter. We are unable to agree with the learned counsel for the respondent. Even if it be by way of affirmation of the order of the tribunal below, being an order passed by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India, there must be sufficient indication of application of mind to the grievance made in the writ petition challenging the orders of the tribunal. We find such a thing to be lacking in this case. Consequently, we allow this appeal, set aside the order of the High Court on this only ground and direct the matter to be restored to its original file to be dealt with afresh on merits and in accordance with law after hearing both the parties. The High Court may consider the disposal of the matter expeditiously, preferably within a period of six months from the date of receipt of copy of this order. No costs."

3.By order dated 2nd June, 2003 the Petition came to be admitted and was made returnable within three weeks. It was heard on 23rd and 30th July, 2003 as well as on 7th August, 2003 and it remained part-heard on account of the failure on the part of the learned A.G.P. to produce the original record before us and more particularly the record pertaining to the inquiry proceedings conducted by Shri S.G.Gawali, District Inquiry Officer as well as the preliminary inquiry conducted by Shri M.K.Tupsakhare, Assistant Director, Social Forestry Division, Nanded. The said record has been produced before us today and we have heard the learned A.G.P. as well as Shri Dhage, the learned counsel for the Respondent - Government employee.

4.If regards be had to the report submitted by Shri S.G.Gawali, District Inquiry Officer, on 4th January, 1994 and subsequently on 9th May, 1994 the view taken by the tribunal cannot be held to be erroneous. The charges against the delinquent were:

(a) Misuse of the post of Plantation Officer while lifting coupons from the Tahsil Office at Mukhed;

(b) Misappropriation of coupons involving 264.99 quintals Jowar;

(c) Cheating/ misleading the Government by preparing false documents/ requisitions; and

(d) Causing loss of Rs.41,757.52 Ps. to the State Government for self gain.

5.The charge sheet dated 19th August, 1992, along with the statement of charges, was served on the delinquent employee on 20th August, 1992 and he had filed his defence statement on or about 19th October, 1992 and denied the charges. When the inquiry was ordered, his request for being defended by Shri Peshwe, was turned down and, therefore, he approached this Court. While allowing his petition, this Court had directed the Disciplinary Authority and the Inquiry Officer to grant permission for being defended by Shri Peshwe. It appears that on one or two dates the delinquent along with his defence representative appeared before the Inquiry Officer and, thereafter, remained absent. The Inquiry Officer submitted his first report on 4th January, 1994 and the second report on 9th May, 1994. We have noted that the findings recorded, holding the delinquent guilty of the charges levelled against him, are not supported by proper reasoning.

6.However, the record of the preliminary inquiry conducted by Shri M.K.Tupsakhare and the inquiry proceedings conducted by the District Inquiry Officer do indicate existence of sufficient material which ought to have been placed before the District Inquiry Officer by examining the concerned witnesses even though the delinquent had remained absent. When a charge is levelled against an employee, the onus of proving such charge fully rests on the disciplinary authority and in the instant case a Presenting Officer was appointed who did not remain present before the Inquiry Officer. In the Preliminary Inquiry conducted by Shri M.K.Tupsakhare, Assistant Director, the statement of the delinquent officer was recorded along with the statement of one Shri Chaudhari, the Grocery shop owner to whom the delinquent officer had confessed to have purportedly sold the deficit Jowar stocks on 4-5 occasions and collected money for his personal gain. The Inquiry Officer examined Shri V.D.Sangamwar, the Accountant from the Collectorate at Nanded which testimony is not sufficient to pin down the delinquent officer. In addition, the evidence of Shri D.K.Patil, Plantation Officer, at the relevant time, was also relevant. Even with the lapse of time the department still has the right to proceed with a denovo inquiry against the delinquent officer and on the face of the material available on the record we deem it expedient that a denovo inquiry is conducted against the Respondent - Government employee.

7.We have noticed that the Respondent was working as a Clerk under the Plantation Officer at Mukhed and there is no dispute that he had lifted coupons from the Tahsil office at Mukhed on 11th January, 1991, 29th January, 1991, 11th February, 1991, 26th June, 1991 and 2nd August, 1991. The labours engaged under the Employment Guarantee Scheme, which was executed by the Social Forestry Department at the relevant time, were being paid fifty per cent of the wages in cash and balance was in terms of foodgrains like Jowar etc. The foodgrains were to be distributed on the basis of the coupons made available from the Tahsil office. The charge against the delinquent has been that he received the coupons from the Tahsil office, lifted the Jowar stocks but did not distribute amongst the labours under the Employment Guarantee Scheme and instead the stocks were sold to one Shri Choudhari and some other persons. Looking at the nature of charges we have no doubt in our mind that a denovo investigation is undertaken by the disciplinary authority and in the domestic tribunal the above said persons viz. Shri D.K.Patil, Shri M.K.Tupsakhare, Shri V.D.Sangamwar and Shri Choudhari, the shop keeper are examined. The respondent must also be given an opportunity of cross-examining these witnesses and adducing evidence, if any, in his defence.

8.In the premises, we allow the Petition partly and while agreeing with the order of the Tribunal to set aside the order of dismissal, we direct the Respondents to conduct a denovo inquiry into the charges levelled against the Respondent employee as per the charge sheet/ show cause notice dated 19th August, 1992. The inquiry shall be conducted and completed as expeditiously as possible and, in any case, within a period of three months and undoubtedly in keeping with the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. We make it clear that the inquiry proceedings shall be conducted without being influenced by any observations made in this order. We also clarify that the fresh order of punishment, if any, shall relate back.

9.We have noted down the undertaking furnished by the Respondent employee that he shall cooperate and remain present so that the denovo inquiry is completed within the stipulated period.

10.Rule is made absolute accordingly without any order as to costs.