Shailendra vs The State Of Maharashtra
2012 Latest Caselaw 43 Bom

                                       1                        WP 5498/2012

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD




                                                                      
                      WRIT PETITION NO.5498 OF 2012




                                              
          Shailendra s/o Vasant Panpatil,
          Age: 46 years, Occu.Service,
          r/o Sonpeth, Tq.Sonpeth,




                                             
          Dist.Parbhani.
                                       ...PETITIONER

                VERSUS




                                
     1.   The State of Maharashtra
          Through Secretary,
                    
          General Administration Department,
          Mantralaya, Mumbai.
                   
     2.   The Divisional Commissioner,
          Aurangabad Division, Aurangabad.

     3.   The Review Committee,
          Through its President -
      

          Divisional Commissioner,
          Aurangabad Division, Aurangabad.
   



     4.   The Zilla Parishad, Parbhani,
          Through Chief Executive Officer,
          Z.P. Parbhani, Tq. & Dist. Parbhani.





                                           ...RESPONDENTS
                                 ...

     Mr. M.V.Ghatge, Advocate for the petitioner.
     Mr. D.R.Korde, A.G.P. for respondent nos. 1 and 2.





     Mr. V.V.Bhavthankar, Adv., for respondent no.4.

                              ...
                      CORAM: NARESH H.PATIL
                                  AND
                             A.B.CHAUDHARI, JJ.

DATE : 1/10/2012 ***

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JUDGMENT: (Per A.B.Chaudhari, J.)

1. Heard.

2. Rule, made returnable and heard forthwith with the consent of learned Counsel for the parties.

3. In the present petition, the petitioner has put to challenge decision of respondent No.3 Committee dated 27.3.2012, communicated to him under letter dated 31.3.2012

by which the Committee refused to accept the proposal sent by the Chief Executive Officer, Zilla Parishad, Parbhani, to revoke

the suspension of the petitioner, which was made on 6.3.2007, due to registration of criminal offence against him.

4. In support of the writ petition, learned Counsel for the petitioner contended that the petitioner was placed under

suspension by order of suspension dated 6.3.2007, issued by the Chief Executive Officer, Zilla Parishad, Parbhani, on the

ground that the petitioner is being prosecuted in criminal prosecution for offence punishable under Section 420 read with Section 34 of I.P.C. in Crime No.2/2005, registered with

Police Station, Deopur, investigated by State Crime Department, Dhule. The Crime Branch had informed the Zilla Parishad about it on 5.3.2007. The Counsel argued that the said crime registered against him for the alleged offence

therein has nothing to do with his employment in Zilla Parishad, Parbhani, and according to the prosecution, the alleged crime had taken place somewhere in the year 2002 while the petitioner was employed by Zilla Parishad, Parbhani, on 30.11.2004, as Extension Officer. That apart, according to him, chargesheet was filed in the Court, and criminal case is pending for last five years, and the petitioner is being paid 75

3 WP 5498/2012

per cent of his salary as subsistence allowance. In earlier

Writ Petition (No.8575/2011), this Court had directed the Committee to review the continuation of suspension of the

petitioner but the Committee has not approved the proposal for revocation on the ground that the charges in the criminal case are serious. The Counsel then argued that, by now, the period

of five years has now elapsed and the continuance of suspension is unreasonable and arbitrary and, therefore, the Committee ought to revoke the suspension.

5. Per contra, learned Counsel for Zilla Parishad,

Parbhani, opposed the writ petition and submitted that the charges levelled against the petitioner are of cheating, and are

serious charges in which case no revocation can be made. The Committee has rejected the proposal. Even then, the Counsel for the Zilla Parishad submitted that one more

proposal has been sent for revocation since the Zilla Parishad is paying major portion of the salary as subsistence allowance

to the petitioner.

6. CONSIDERATION:

We have perused the writ petition; so also, the FIR that was lodged by the complainant Sanjay Daulkar, resident of Sakri Road, Dhule. According to the First Information report

lodged by said complainant Shri Sanjay, the present petitioner was working as a Laboratory Technician in one private Centre, namely, AIDS Research Centre, Deopur, Dhule, in the year 2002. He happened to meet the petitioner, being his neighbour, and the petitioner had told him that some vacancies in the said Centre are being filled in, and if he was interested, the petitioner would get him employed; he being close to the Director of the said Centre Shri Dinesh @ Dinkar Narayan

4 WP 5498/2012

Bhise. According to the complainant, the petitioner then had

told him that an amount of Rs.3,00,000/- ( Rs. three lacs) will be required to be paid for the post of Administrative Officer

and Rs.2,00,000/- ( Rs. two lacs) for the post of Clerk, to the said Shri Bhise. Complainant Sanjay offered to pay Rs. 1,75,000/- for the post of Clerk, and the petitioner accepted the

said amount in March, 2002, at his residence. Thereafter, on 9.4.2002, Shri Dinesh Bhise issued an appointment order to the complainant Sanjay, and he joined on the same date as Clerk.

The complainant received the salary at the rate of Rs.3846.50 per month till August, 2003 from the said Centre. however,

thereafter, no salary was paid and the complainant continued to work till Oct.,2004 but, then, the Centre was closed down.

The complainant further stated that there are about 900 to 1000 such persons like him who paid various amounts to said Shri Bhise but, all of them were deceived. When the

complainant approached Shri Bhise, he avoided to repay back the amount. Shri Bhise went to the extent of issuing blank

cheques to many emloyees which, eventually, had bounced. The complainant then asked the petitioner to pay back his amount of Rs.1,75,000/- but the petitioner told him that the

said amount was paid by him to Shri Dinesh Bhise and that is why appointment order was issued by Shri Dinesh Bhise. The complainant then stated that, thus, he did not receive back his money. It is in the above background then, finally, on 1st Jan.,

2005, he lodged the said report with the Police Station. The petitioner was then arrested after registration of the crime and charge-sheet has been filed in the Court, as stated earlier.

7. It is clear from the above facts that the incident in respect of which offence has been registered is prior to his employment with Zilla Parishad, Parbhani. The allegations by

5 WP 5498/2012

the complainant in the FIR are directly against the Director

Shri Dinkar Bhise of the said Centre and not against the petitioner, about receipt of amount of Rs.1,75,000/-. Even,

according to the complainant, the money was paid to Shri Bhise and the petitioner acted as a middleman. The FIR was lodged a month after the petitioner got employment in Zilla

Parishad, Parbhani, in respect of the alleged offence that had taken place about two and half years back. These were the relevant facts, which were required to be considered by the

Committee in proper perspective.

8.

It is true that commission of a criminal offence itself is a good ground for putting an employee under

suspension, and in the instant case, the offence involves moral turpitude. The question, however, is about the nature of the job of the Review Committee which is of weighing the pros and

cons of the matter. The `role' of the petitioner, in the said crime, which can be seen from the FIR, and the chargesheet,

was required to be examined in proper perspective. The `period' that has been spent under suspension is almost of five years, which is certainly not a reasonable period. That apart,

this Court is anxious, to find that the petitioner is being paid 75 per cent of his salary as subsistence allowance, which is nothing but payment from the public exchequer without getting any work done from him. For the last five years, he is

being paid 75 per cent of his salary, sitting at home. The question is about the wasteful expenditure of public money for the last five years.

9. In the above fact situation, the Review Committee has not considered these important circumstances. If the petitioner had committed serious offence, he may not have any

6 WP 5498/2012

right to get the order of suspension revoked; nay, this Court is

much worried about the wasteful expenditure of public money, as stated above. After application of Sixth Central Pay

Commission, payment of 75 per cent of the salary is on a very higher side and it is not at all wise to allow draining out public money from the Treasury, for being wasted. According to us,

the responsibility on the trustees, or the custodians of the public money, to save it from being wasted, stands on a higher pedestal than private money of a person. The private person

would never like, and rather, his heart would burn if his private earnings are wasted in such a manner. Why the same principle

should not be applied by the custodian, or trustees of the public money.

10. The object of putting an employee under suspension is to keep him away from his regular duties till the

completion of departmental proceedings against him, to keep him away from the Government records and any other

evidences. Similar is the object in putting him under suspension when he faces a criminal charge particularly involving serious offences and offences involving moral

turpitude, and in addition to project deterrence. But then gone are the days when suspension of a Government servant was so much humiliating for him that he hesitated to come out of his house to show his face. The suspended Government servant

gets 75 per cent of his salary and full free time to undertake other avocation. This must be remedied.

11. Looking to the present set-up, and the Rules relating to suspension or revocation of suspension, and the Government Resolutions regarding revocation of suspension, what we find is that there is no protection available for saving

7 WP 5498/2012

the public money from being wasted. We, therefore, would

suggest the Government to re-look at the relevant Rules with a view to save valuable public money in the cases relating to all

types of suspension. To save the public money should be the paramount consideration.

12. Coming to the facts of the present case, and in the light of the discussion above, we are of the opinion that the Review Committee ought to consider all the relevant aspects in

proper perspective.

If the Department is apprehensive about the suspended

employee interfering in the course of justice, as the case may be, alternate arrangements like transfers, etc. can be made, by

different methods, and the desired object can be achieved.

In the result, we make the following order:

ORDER

(1) Writ Petition (No.5498 of 2012) is partly allowed.

(2) The proposal for revocation of suspension (fresh or old) of the petitioner, sent by the Zilla Parishad, Parbhani, shall be examined by the respondent No.3 Committee on its own

merits, and in view of the observations made here-in-before, within a period of six weeks from the date of receipt of order. (3) A copy of this judgment be sent to the Chief Secretary, Government of Maharashtra, for necessary action.

Rule is made absolute in above terms. No order as to costs.

(A.B.CHAUDHARI, J.) (NARESH H.PATIL, J.)

...

AGP/5498-12wp