Chandralal S/O Parasram Pawar vs The Zilla Parishad, Gadchiroli ...
2016 Latest Caselaw 1532 Bom

                                                             1                                    jg.wp1967.15 .odt




                                                                                                         
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             : NAGPUR BENCH : NAGPUR.




                                                                            
                                 WRIT PETITION NO. 1967 OF 2015

    Chandralal s/o Parasram Pawar 
    Aged 35 years, Occ. Service, 




                                                                           
    R/o PWD quarter No. 2, Gadchiroli.                                                             ... Petitioner 

                 VERSUS




                                                         
    The Zilla Parishad, 
    Gadchiroli through its 
    Chief Executive Officer. 
                                  ig                                           ... Respondent 
    -------------------------------------------------------------------------------------------------
    Shri P. D. Meghe, Advocate for the petitioner 
                                
    Shri S. D. Zoting, Advocate for the respondent 
    ------------------------------------------------------------------------------------------------------------------------
     
                                             CORAM :  PRASANNA B. VARALE, J.

                                             DATE    :   15-4-2016.
      


    ORAL ORDER
   

Heard Shri Meghe, learned counsel for the petitioner and

Shri Zoting, learned counsel for the respondent - Zilla Parishad.

2. Rule. Rule made returnable forthwith.

3. By the present petition, the petitioner challenges the order

passed by the learned Member, Industrial Court, Chandrapur below

Exhibit 2 dated 19-3-2015 in Complaint ULP No. 9/2015.

4. As the controversy is limited one, it is not necessary to refer

to the facts in detail. Suffice it to say that the petitioner who was an

employee of the Zilla Parishad, Gadchiroli was subjected to proceeding

2 jg.wp1967.15 .odt

initiated against him departmentally for alleged misappropriation of the

amount. The petitioner also faced the criminal trial on the very basis of

alleged misappropriation of the amount. It is the submission of the

petitioner that at various stages of the enquiry, the superior officers

while imposing proposed punishment made it clear that the recovery

allegedly of an amount of Rs. 6,14,745/- could be subject to the decision

of the criminal case. Learned counsel Shri Meghe submitted that the

petitioner was acquitted by the learned Chief Judicial Magistrate,

Gadchiroli by judgment and order dated 22-2-2012. Shri Meghe,

learned counsel invited my attention to the judgment and order passed

by the learned Chief Judicial Magistrate, Gadchiroli. The petitioner was

charged for committing an offences punishable under Sections 409 and

477 of the Indian Penal Code. The submission of Shri Meghe is, the

material before the learned Chief Judicial Magistrate as well as before

the Enquiry Officer is more or less similar and the learned Chief Judicial

Magistrate arrived at the conclusion that the prosecution has utterly

failed to prove the charges levelled against the petitioner/accused.

Shri Meghe further submitted that the enquiry conducted against the

petitioner is merely a formality. Shri Meghe, learned counsel by inviting

my attention to the report of the Enquiry Committee submitted that the

only material before the Committee was statements of certain employees

3 jg.wp1967.15 .odt

and the submissions of the petitioner. Learned counsel then submitted

that the Enquiry Officer failed to assign any independent reasons and

merely referred to the charges and submissions of the petitioner and

jumped to the conclusion that the petitioner is found indulging in act of

misappropriation. Shri Meghe, learned counsel then submitted that

even observing this, Enquiry Officer put a rider namely about recovery

and observed that the recovery be initiated only subject to decision of

the criminal case. Shri Meghe, learned counsel placed heavy reliance on

the judgment of the Apex Court reported in 2006(5) SCC 446 in the

case of G. M. Tank Vs. State of Gujarat and others. Shri Meghe,

learned counsel submitted that the learned Member, Industrial Court

failed to appreciate all these relevant factors in considering the

application of the petitioner seeking stay to the recovery initiated by the

respondent - Zilla Parishad. It is submitted by Shri Meghe that the

recovery is also unsustainable on the ground that the petitioner is

subjected to face the recovery not only of the alleged misappropriation

but also an exorbitant amount of interest is levied over and above the

alleged amount of misappropriation. Shri Meghe, learned counsel

submitted that the petitioner is not against the conclusion and early

disposal of the complaint by the learned Member, Industrial Court so as

to balance the equities.

4 jg.wp1967.15 .odt

5. Per contra, Shri Zoting, learned counsel for the Zilla

Parishad vehemently submitted that there is a difference in the scope

and sphere of the Departmental Enquiries and the assessment of the

material by a trial Court. He further submitted that the complaint

submitted by the petitioner before the learned Member, Industrial Court

is itself untenable. It is the submission of learned counsel Shri Zoting

that the petitioner has availed two remedies simultaneously viz. before

the Hon'ble Minister and at the same time the petitioner has also

approached the learned Member, Industrial Court.

6. On the backdrop of the submissions of learned counsel, I

have gone through the documents placed on record. The perusal of the

material clearly shows that the communication issued to the petitioner

and more particularly, the proposed punishment is also with a rider of

recovery subject to decision of the trial Court. It is also not in dispute

that the learned Magistrate while dealing with the charges levelled

against the petitioner examined more than 18 witnesses. Perusal of the

judgment and order passed by the learned Chief Judicial Magistrate

shows that though the prosecution examined number of witnesses and

all these witnesses mostly are the employees of the Zilla Parishad or the

alleged beneficiaries of the alleged misappropriation of the petitioner,

learned trial Court found that the documentary evidence and the oral

5 jg.wp1967.15 .odt

evidence brought by the prosecution falls too short to prove the charges

against the petitioner. Insofar as the enquiry proceedings are perused,

the witnesses in the enquiry proceedings are hardly 4 witnesses. The

Enquiry Officer also while arriving at the conclusion on the basis of

mostly submissions of the petitioner put a rider that the recovery, if any,

is to be initiated against the petitioner, it would be subject to the

decision of the criminal Court. The order of recovery against the

petitioner shows that the allegation against the petitioner is of

misappropriation of the amount to the tune of Rs. 6,14,745/-. It is not

in dispute that the petitioner has deposited an amount of Rs. 1,20,000/-.

As such, rest of the amount is to the tune of Rs. 4,94,745/-. On the

backdrop of the fact that while imposing the punishment and also in the

process of enquiry, the authorities were conscious of the fact that the

recovery could have been initiated or the petitioner asked to deposit the

amount of recovery subject to the decision of the criminal Court. In

spite of these facts, by the communication, the petitioner is directed to

face the recovery not only to the amount of Rs. 4,94,745/- but with

interest at the rate of 7.40%, thus, totaling the amount to

Rs. 8,92,166/-. The petitioner is directed to face the recovery in 148

installments, first installment being of Rs. 4,166/- and thereafter each

installment of Rs. 6,000/- The learned Member, Industrial Court only

6 jg.wp1967.15 .odt

on the ground that the Departmental Enquiry and criminal trial operate

in different spheres arrived at a conclusion that there was no prima facie

case in favor of the petitioner/complainant. The learned Member,

Industrial Court while observing that the petitioner/complainant was

involved in misappropriation of huge amount and there was

punishment imposed against the petitioner, failed to appreciate that the

trial Court on the assessment of the evidence found no material

convincing the Court about the truthfulness of the charges and also

failed to appreciate that the authorities themselves in the Departmental

proceedings were conscious of the fact that the recovery could have

been initiated only subject to the decision of the trial Court. The learned

Member also failed to consider the aspect of the matter that the

petitioner was subjected to face recovery not only for the alleged

misappropriation of the amount but also interest levied at the rate of

7.40%. Learned counsel Shri Meghe was justified in placing reliance of

the judgment of the Apex Court in the case of G. M. Tank Vs. State of

Gujarat and others (cited supra). Though Shri Zoting, learned counsel

for the Zilla Parishad submitted that the petitioner is availing two

remedies simultaneously and, as such, the complaint before the learned

Member, Industrial Court is not sustainable, this ground can be raised

before the learned Member, Industrial Court. The ultimate decision of

7 jg.wp1967.15 .odt

the complaint is subject to hearing of the parties and that stage is yet to

arrive. The order passed by the learned Member, Industrial Court in my

opinion, in view of the above referred facts is unsustainable. The

submission of Shri Meghe, learned counsel for the petitioner that in

addition to above directions, the learned Member, Industrial Court be

directed to decide the complaint within reasonable period is worth

consideration for balancing the interest of both the parties before this

Court. In the result, the writ petition is allowed.

7. The order impugned in the petition passed by the learned

Member, Industrial Court is quashed and set aside.

8. The learned Member, Industrial Court is directed to decide

and dispose of the complaint as early as possible and preferably within

six months from today, needless to state that by granting opportunity of

hearing to both the parties.

9. As the order passed by the learned Member, Industrial

Court rejecting the application of the petitioner is quashed and set aside,

the respondent - Zilla Parishad not to take steps of recovery of the

amount till the decision of the complaint as directed by this Court within

the period as stipulated by this Court.

8 jg.wp1967.15 .odt

10. Shri Zoting, learned counsel for the Zilla Parishad submitted

that in case there is a delay in deciding the complaint, the respondent -

Zilla Parishad be permitted to approach this Court. The prayer of the

learned counsel for the respondent - Zilla Parishad is granted.

JUDGE

wasnik