Bombay High Court
State Of Maharashtra vs Legal Heirs Of Sole on 20 August, 2016
Bench: V.A. Naik
WP 2164/03 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 2164/2003
1. State of Maharashtra,
through Secretary,
Government of Maharashtra,
Mantralaya, Mumbai.
2. Superintending engineer,
Minor Irrigation Department, Akola,
Irrigation Circle, Akola. PETITIONERS
.....VERSUS.....
Kisanlal Madanlal Vyas.
ig (DEAD)
LEGAL HEIRS OF SOLE RESPONDENT:
1-A. Smt. Latadevi W/o Kisanlal Vyas,
Aged 72 years, Occ: Housewife.
1-B. Shri Ajaykumar S/o Kisanlal Vyas,
Aged 47 years, Occ.: Pvt. Service.
1-C. Smt. Sarita W/o Vijaykumar Derashree,
Aged 52 years, Occ. Housewife.
All 1 to 3 r/o Shrinath Apartments,
2nd Floor, Near Hotel Greenland Cottages,
Gaurakshan Road, Akola, Dist. Akola.
1-D. Sou. Savita W/o Satyanarayan Changani,
Aged 50 years, Occ.: Housewife,
R/o Khaparde Bagicha, Near Bus Stand,
Amravati.
1-E. Sou. Suchita W/o Girish Purohit,
Aged 42 years, Occ.: Legal Practioner,
R/o 140, Abhyankar Nagar, Nagpur -10. RESPONDENTS
Shri A.A. Madiwale, Assistant Government Pleader for the petitioners.
Shri N.R. Saboo, counsel for the respondents.
CORAM :SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 20 TH AUGUST, 2016.
WP 2164/03 2 Judgment
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
By this writ petition, the petitioners-State of Maharashtra and
another has challenged the order of the Maharashtra Administrative
Tribunal, dated 20.11.2002, allowing an original application filed by the
respondent and directing the petitioners to treat the period of suspension
of the respondent from 01.03.1966 till 22.07.1969 and the period from
the date of his dismissal, i.e. 23.07.1969 till 15.03.1988, i.e. the date of
his reinstatement, as duty period for all purposes. By the impugned
order, the Maharashtra Administrative Tribunal directed the petitioners to
pay the full pay and allowances to which the respondent was entitled, had
he not been suspended or dismissed.
2. The respondent was serving as a Junior Engineer with the
petitioners when a charge-sheet was served on him. Four charges were
levelled against the respondent and after conducting a full-fledged
departmental enquiry, it was found that the fourth charge was partly
proved against him. According to the fourth charge, the respondent had
wrongfully measured the land thereby causing loss to the Government
Exchequer. The respondent was dismissed from service by the order
dated 09.07.1969. Against the order of dismissal, the respondent filed a
civil suit. The civil suit was dismissed and the first appeal filed by the
respondent against the judgment of the trial Court was also dismissed.
WP 2164/03 3 Judgment
The second appellate Court, however, allowed the second appeal filed by
the respondent and set aside the order of dismissal after observing that an
opportunity, as required under the provisions of Article 311(2) of the
Constitution of India was not afforded to the respondent before he was
dismissed from service by the order dated 09.07.1969. In terms of the
judgment in the second appeal, dated 17.03.1987, the petitioners
reinstated the respondent in service on 15.03.1988. The petitioners
passed an order under Rule 71(2) of the Maharashtra Civil Services
(Joining Time, Foreign Service and Payments During Suspension,
Dismissal and Removal) Rules, 1981, on 16.01.1995 directing the
payment of 50% of pay and allowances to the respondent for the period
between 17.03.1984 to 16.03.1987. The respondent was held entitled to
the full pay and allowances for the period between 17.03.1987 to
15.03.1988 as he was not responsible for not joining the duties after the
second appellate Court had directed his reinstatement. By the said order,
the petitioners directed that the period from 01.03.1966 to 16.03.1987
should be considered as duty period only for the purposes of pensionary
benefits. Since the petitioner was not paid the pay and allowances in
pursuance of the order dated 16.01.1995 directing that the period from
01.03.1966 to 16.03.1987 should be considered as duty period only for
the purpose of computing the pension, the respondent filed an original
application before the Maharashtra Administrative Tribunal. In the said
original application, the respondent claimed the pay and allowances for
WP 2164/03 4 Judgment
the said period. The Maharashtra Administrative Tribunal, after hearing
the parties, by the impugned order dated 20.11.2002, directed the
petitioners to treat the period from 01.03.1966 till 15.03.1988 as duty
period for all purposes. The Tribunal directed the petitioners to pay full
pay and allowances to the respondent for the said period. The order of
the Tribunal is challenged by the petitioners in the instant petition.
3. Shri Madiwale, the learned Assistant Government Pleader
appearing for the petitioners, has relied on the provisions of Rule 71(2)
of the Maharashtra Civil Services (Joining Time, Foreign Service and
Payments During Suspension, Dismissal and Removal) Rules, 1981 to
substantiate his submission that when a dismissal order is set aside by the
Court solely due to the non-compliance of the requirements of Clause 2 of
Article 311 of the Constitution of India and when the government servant
is not exonerated on merits, the government servant would be entitled
only to the pay and allowances, as determined by the authorities after
giving a notice to the government servant. It is stated by referring to the
judgment of the second appellate Court, dated 17.03.1987 that the
second appellate Court had held that the order of dismissal was against
the cannons of natural justice as no reasonable opportunity was granted
to the respondent in this case, to show cause as to why he should not be
dismissed. It is stated that the Tribunal has erroneously relied on some
observations in paragraph 15 of the judgment of the second appellate
WP 2164/03 5 Judgment
Court to hold that the exoneration of the respondent was on merits as an
adverse inference was drawn against the petitioners that Shri Kavthekar,
the disciplinary authority, did not agree with the findings of the Enquiry
Officer. It is stated that after observing so, the second appellate Court has
observed in paragraph 15 of the judgment that it was necessary for Shri
Kavthekar to issue a show cause notice to the respondent, as to why he
should not be dismissed. It is stated that in paragraph 15 of the judgment
of the second appellate Court, it is clearly observed that non-issuance of
the second notice under Article 311(2) of the Constitution of India had
vitiated the order of dismissal. It is submitted that the Tribunal has
considered certain stray observations in the judgment of the second
appellate Court to hold that the respondent was not exonerated on
technical grounds but, was exonerated on merits. It is stated that it is
clearly observed by the second appellate Court in several paragraphs of
the judgment including paragraph 15 that the requirements of the
provisions of Article 311(2) of the Constitution of India were not
complied with, before the respondent was dismissed from service. It is
stated that it is clear from the reading of the judgment of the second
appellate Court that the respondent was not exonerated on merits and
was exonerated for non-compliance of the requirements of Clause 2 of
Article 311 of the Constitution of India. It is stated that in this
background, the order of the State Government, dated 16.01.1995 could
not have been faulted with.
WP 2164/03 6 Judgment
4. Shri Saboo, the learned counsel for the respondents, has
supported the order of the Tribunal. It is submitted that the Tribunal has
rightly held that the respondent was exonerated by the second appellate
Court, on merits. The learned counsel sought for the dismissal of the writ
petition.
5. On hearing the learned counsel for the parties and on a
perusal of the order of the Tribunal, the judgment of the second
appellate Court and the provisions of Rule 71(2) of the Maharashtra
Civil Services (Joining Time, Foreign Service and Payments During
Suspension, Dismissal and Removal) Rules, 1981, it appears that the
Tribunal was not justified in allowing the original application filed by
the respondent. It appears that the second appellate Court has allowed
the second appeal filed by the respondent after holding that an adverse
inference could be drawn that Shri Kavthekar, the disciplinary authority,
did not agree with the findings of the Enquiry Officer and, hence, it was
necessary for the disciplinary authority to issue a second show cause
notice to the respondent as required by the provisions of Article 311(2)
of the Constitution of India. We find, on a reading of the judgment of
the second appellate Court that the second appellate Court had not
drawn an adverse inference but, it was only observed that an adverse
inference could be drawn that Shri Kavthekar did not agree with the
findings of the Enquiry Officer. After observing so, the second appellate
WP 2164/03 7 Judgment
Court proceeded to record a finding that the order of dismissal was bad
in law as there was non-compliance of the provisions of Article 311(2)
of the Constitution of India, inasmuch as, a second show cause notice
was not served on the respondent as to why he should not be dismissed
from service. It is clear from a reading of the judgment of the second
appellate Court in its entirety that the exoneration of the respondent
was not on merits but, it was due to the non-compliance of the
provisions of Article 311(2) of the Constitution of India. The Tribunal,
however, gave undue weightage to some stray statements and
observations in the judgment of the second appellate Court to hold that
the exoneration of the respondent was on merits. We find that the
exoneration of the respondent was not on merits as it was not held by
the second appellate Court that there was no material against the
respondent and the charge could not have been proved and/or the
material was not enough to prove the charges or that the findings
of the Enquiry Officer are perverse. It is clear from a reading of the
judgment of the second appellate Court, as rightly stated on behalf of
the petitioners that the exoneration of the respondent was not on
merits but, was on technical ground, i.e. non-compliance of the
provisions of the Article 311(2) of the Constitution of India. If that was
so, the provisions of Rule 71(1) of the Rules of 1981 could not have
been applied to the case of the respondent as were sought to be
applied by the Tribunal by setting aside the order of the petitioners,
WP 2164/03 8 Judgment
dated 16.01.1995, that was rightly based on the provisions of Rule 71(2)
of the Rules. In our considered view, the provisions of Rule 71(2)
apply to the case in hand and since the exoneration of the respondent
was on technical ground, i.e. non-compliance of the provisions of Article
311(2) of the Constitution of India, and not on merits, the respondent
was not entitled to the pay and allowances for the period from the date
of his suspension till the date of his reinstatement as per Rule 71(1).
We find from the order dated 16.01.1995 that the petitioners have
rightly granted full salary to the respondent for a period of about one
year as he was not responsible for the delay in his reinstatement and
was entitled to 50% of the salary for certain period for which he was not
at fault. The Tribunal, however, erroneously held that the respondent
was entitled to full pay and allowances for the entire period during
which he was out of service. The petitioners have given sufficient
reasons for not granting full pay and allowances to the respondent
for certain period, granting full pay and allowances for about a year
and granting 50% of the pay and allowances for the period from
17.03.1984 till 16.03.1987. In our view, there was no scope for
interference with the order dated 16.01.1995 as the same was passed
in consonance with the provisions of Rule 71(2) of the Rules of 1981.
In the circumstances of the case, the order of the Tribunal is liable to
be set aside.
WP 2164/03 9 Judgment
6. Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned order is quashed and set aside. The original application
stands dismissed. The petitioners are permitted to withdraw the amount
deposited in this Court.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
WP 2164/03 10 Judgment
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