Bombay High Court
Ganesh Tulshiram Pagare vs The State Of Maharashtra And ... on 18 July, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3584 OF 2016
Ganesh s/o. Tulshiram Pagare,
Age 37 years, Occ. Service,
R/o. Sneh Nagar, Beed,
Tal. & District Beed. PETITIONER
VERSUS ig
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The Divisional Commissioner,
Aurangabad Division, Aurangabad.
3. The District Collector, Beed.
4. Maharashtra Rajya Nagar Parishad
Karmachari Sanghatna, Branch Beed,
through the President
Anil Nagorao Mate,
Age 34 Yrs. Occ.Service
R/o.Ganesh Nagar, Beed
Tq. & Dist. Beed.
(Amendment is made as per
Court's Order dtd.26.4.2016
in C.A.No.4772/2016) RESPONDENTS
...
Mr.S.S.Thombre, Advocate for the petitioner
Mr.V.S.Badakh, AGP for the respondents.
Mr.M.S.Indani, Advocate for the Respondent
No. 4 / Intervenor.
...
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CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 24.06.2016
Pronounced on : 18.07.2016
JUDGMENT: (Per S.S.Shinde, J.):
This Writ Petition takes exception
to the impugned letter / order dated
02.03.2016 issued by respondent no.2
Divisional Commissioner, Aurangabad.
2. The learned counsel appearing for
the petitioner submits that by the impugned
order, the Divisional Commissioner has
directed to transfer the petitioner to other
Municipal Council in Beed District. The said
order is passed on the basis of complaint
filed by one Mr. Anil Mate, President of
Maharashtra Rajya Nagar Parishad Karmachari
Sanghatana and others, against the petitioner
and under the influence of Mr. Vinayak Mete,
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the Member of Legislative Council,
Maharashtra State. It is submitted that the
petitioner has worked in the various
capacities in the Municipal Council, Beed,
since 01.05.2001. His service record is
unblemished. The State of Maharashtra, vide
its Resolution dated 02.08.2011, changed the
cadre of the petitioner from the Municipal
Council as the State level Cadre of the
Municipal Council and the services of the
petitioner are regularized, vide order dated
02.08.2011. The impugned order is an outcome
of rivalry between the employees Unions. The
petitioner is a Leader of one Union. Shri
Anil Mate, who was member of Union, left the
petitioner's Union and became member of the
rival Union. The petitioner is working in the
accounts Division of the Municipal Council
since 19.01.2015. The Union leader of rival
Union filed complaint to the District
Collector against the petitioner and also
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approached Shri Vinayakrao Mete, Member of
Legislative Council ("MLC" for short). It is
submitted that the said MLC written a letter
to the District Collector on 10.06.2015 and
directed the District Collector to transfer
the services of the petitioner to any other
Municipal Council. The learned counsel
invites our attention to the copies of
letters, which are placed on record.
3. He submits that in pursuance of the
said letter, the District Collector called
the report from the Chief Officer, Municipal
Council. However, the Chief Officer,
Municipal Council, opined that there is no
complaint pending against the petitioner and
his services are satisfactory. It is
submitted that though there was no substance
in the complaint filed by Shri Anil Mate, the
respondent State Authorities under the
influence of the letter written by the MLC
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and complaint filed by Shri Anil Mate,
concocted enquiry was initiated against the
petitioner and thereafter, the impugned
letter is issued by the Commissioner. It is
submitted that the Chief Officer submitted a
report to the Sub Divisional Officer stating
therein that the petitioner had worked with
the utmost care as well as it was
specifically stated that in the year 2011-12,
the petitioner had received excellence award
for his work. The learned counsel invites
our attention to the report submitted by the
Chief Officer. It is submitted that the Sub
Divisional Officer issued a notice to the
petitioner and called his explanation, vide
its letter dated 05.10.2015. Thereafter, the
petitioner submitted his say / reply on
09.10.2015. The learned counsel invites our
attention to the copy of notice and reply to
the said notice.
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4. It is submitted that the reference
of the Enquiry No.31/2002 conducted in the
year 2002 in the report prepared by the Sub
Divisional Officer is misconceived, and no
reliance can be placed on the said report
whatsoever since the said enquiry report was
placed before the General Body and general
body of the Municipal Council absolved the
petitioner from the charges levelled against
him and also his period under suspension was
considered as working period and no action
was proposed by the general body against the
petitioner. Therefore, the said enquiry
report could not have been relied upon /
acted upon by the Sub Divisional Officer or
the respondent State Authorities, when the
petitioner is already exonerated by the
general body in its meeting held on
20.07.2006.
5. It is submitted that on the basis of
impugned communication, the District
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Collector is likely to transfer the
petitioner from the Municipal Council Beed to
other Municipal Council. It is submitted that
the directions issued in the impugned letter
to transfer the petitioner from Beed
Municipal Council to other Municipal Council
are not on the ground of administrative
convenience but punitive in nature. The
enquiry conducted by the Sub Divisional
Officer is not independent in nature and the
same was influenced by the direction issued
by the Collector and the letter written by
the Member of Legislative Assembly. The
impugned communication is made under the
political pressure of the Member of
Legislative Assembly and also under the
pressure of the Union leader of the rival
union. The learned counsel appearing for the
petitioner relying upon the averments in the
affidavit-rejoinder submits that the
statement made by the intervenor on
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07.06.2016 during the course of hearing of
the Petition that the Divisional Commissioner
had again issued an order dated 06.05.2016 in
respect of transfer of the petitioner from
Beed Municipal Council to Sillod Municipal
Council, is based upon the concocted and fake
documents / transfer order, which is neither
issued by the office of the Commissioner. It
is submitted that the District Collector,
Beed, had sought clarification from the
office of the Divisional Commissioner and it
was informed to the office of the District
Collector that no such order of transfer has
been issued by the office of the Divisional
Commissioner. Therefore, the learned counsel
for the petitioner submits that the
appropriate action should be initiated
against those persons who have created /
fabricated such documents, in accordance with
law.
6. On the other hand, the learned
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counsel appearing for the intervenor, whose
intervention application is already allowed,
relying upon the affidavit-in-reply filed on
behalf of intervenor submits that the
respondent / intervenor is the President of
the Maharashtra Rajya Nagar Parishad
Karmachari Sanghatana, Branch Beed. The said
Union is duly registered under the Trade
Unions Act, 1926 and headed by the Union
leader Shri Andhale at State level. This
Trade Union is formed by the Class-IV
employees of the Nagar Parishads and Nagar
Panchayats in the State of Maharashtra, and
therefore, the said Union is working for the
welfare of the Class-IV employees of Nagar
Parishad and Nagar Panchayats in the State of
Maharashtra. It is submitted that the
petitioner has made misleading statement in
the Petition so as to gain sympathy. It is
not explained how the petitioner has come in
possession of the impugned letter in this
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Petition, which is internal correspondence
between the administrative authorities of the
State Government and the said administrative
correspondence cannot be challenged in the
writ jurisdiction under Article 226 of the
Constitution, and therefore, Writ Petition is
not maintainable and deserves to be dismissed
in limine.
7. It is submitted that the petitioner
being State employee ought to have approached
the Maharashtra Tribunal for redressal of his
grievance raised in this Petition. He further
submits that since the petitioner has been
held guilty in department enquiry he should
have availed appropriate remedy. The
petitioner has not approached this Court
with clean hands, disclosing all relevant and
correct facts. The impugned communication /
order is based upon the enquiry report
submitted by the Sub Divisional Officer to
the District Collector wherein the petitioner
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is held guilty for the charge which is
mentioned in the said report. It is submitted
that the petitioner is guilty for the
contravention of Rule 3 (1) (i) (ii) of the
Maharashtra Civil Services (Conduct) Rules,
1979. Hence it is crystal clear that the
impugned letter issued by the Divisional
Commissioner, Aurangabad, is on the basis of
enquiry report of the Sub-Divisional Officer,
Beed and not on the basis of instruction of
the MLC or the complaint filed by the
respondent no. 4 / deponent. It is submitted
that the petitioner is working since last 17
years as an Assistant Accountant and recently
also holding the post of Head of the
Administrative Department of the Beed
Municipal Council. The services of the
petitioner are regularised in the state
cadre since 02.08.2011, therefore, he became
due for transfer after completion of three
years service from the above mentioned date.
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The learned counsel invites our attention to
the order issued by the Collector, Beed, by
which the petitioner has been transferred
under the State employment. It is submitted
that the employees of Municipal Council,
Beed, are not getting the benefits of the
time bound promotion after completion of 12
years service due to interference and
hindrance created by the petitioner. There
are several complaints of the aggrieved
employees against the petitioner lodged with
the Maharashtra Rajya Nagar Parishad
Karmachari Sanghatana, Beed. It is submitted
that the report of Chief Officer, Municipal
Council, Beed, dated 07.09.2015 is submitted
in collusion of the petitioner, which is far
away from the truth and reality.
8. It is submitted that looking to the
complaint filed against the petitioner and
the enquiry conducted against him, the
statement made in the said report that, the
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contention that the petitioner had worked
with the utmost care, is contrary to the
record. It is pertinent to note that in the
Department Enquiry No.31/2002, which was
initiated by the Chief Officer, Municipal
Council, Beed, by his letter
No.BHP/KV/Aastha/2/1304, dated 26.02.2002
against the petitioner, the said authority
appointed the District Enquiry Officer, Beed.
In his report dated 15.03.2005, the
petitioner was held guilty of committing
breach of Section 259 of the Maharashtra
Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965, and for the
act of misconduct for causing breach of Rule
3 of the Maharashtra Civil Services (Conduct)
Rules, 1979. Therefore, it is cleared that
the Chief Officer, Municipal Council, Beed
has not submitted the correct report and the
statements made in the said report are
contrary to the report of the District
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Enquiry Officer, Beed and the said report is
is given in collusion with the petitioner,
with mala fide intention to protect the
petitioner.
9. It is submitted that many employees
on completion of more than 12 years service
in the Municipal Council became entitled for
the time bound promotion, are deprived from
their legitimate and legal rights to get the
promotion, due to the indulgence of the
petitioner and therefore, the intervenor
Union has filed a complaint against the
petitioner. It is submitted that the Sub-
Divisional Officer, Beed has rightly
submitted his report to the District
Collector, Beed, by specifically mentioning
in the said report that as per the report of
the District Enquiry Officer, Beed, the
petitioner was held guilty of misconduct, and
therefore, he needs to be transferred
elsewhere to the other Municipal Council
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instead of Beed Municipal Council. It is
submitted that the assertion of the
petitioner that on the basis of the report of
the District Enquiry Officer, Beed, the
action was already taken against the
petitioner, is not correct. On the contrary,
due to vested interest, the office bearers of
the Municipal Council, Beed, have illegally
protected the petitioner and did not propose
to initiate any action in view of the enquiry
report of the District Enquiry Officer, Beed.
Further more, the so-call Resolution No.125
(1)2006-2007 dated 20.07.2006 annexed with
the Petition, purported to be passed in the
general body meeting of the Municipal
Council, Beed, seems to be fabricated
document, as in the said Resolution names of
the proposer and seconder are not mentioned.
Beside this, the general body of any
Municipal Council has no jurisdiction to
decide the action against the guilty
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employee, whose services are regularized in
the State cadre. The Competent Authority to
decide the action / punishment against the
guilty employee of the State cadre level is
the District Collector and not the Municipal
Council. The Municipal Council did not
propose any action against the petitioner,
therefore, the Sub Divisional Officer, Beed,
has concluded in his report dated 04.12.2015
that the action against the petitioner is
warranted.
10. It is submitted that the
representation submitted by the petitioner to
the Sub Divisional Officer, Beed, dated
16.03.2016 is nothing but an attempt to
escape from the action likely to be initiated
against the petitioner for his misconduct,
which is proved in the Department Enquiry No.
31/2002. In the said representation, the
petitioner has stated that the enquiry may be
reviewed, however, no grounds for the said
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Revision are mentioned by the petitioner in
the said representation and the said
representation is not filed keeping in view
the procedure and rules for filing such
representation. The said representation is
filed by the petitioner after the impugned
communication is issued by the Divisional
Commissioner, Aurangabad. It is submitted
that, in fact, instead of only transferring
the petitioner, major punishment should have
been imposed and his services ought to have
been terminated by the Municipal Council
Beed, however, in collusion with the
interested office bearers of the Municipal
Council, fabricated documents are created to
show that the petitioner has been exonerated
by the general body, which is not Competent
Authority. It is submitted that the
petitioner did not challenge the report of
the District Enquiry Officer, Beed in
Department Enquiry No.31/2012, and therefore,
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it attained finality and therefore the
impugned order of Sub-Divisional Officer
needs to be acted upon and rightly acted upon
by the Divisional Commissioner, Aurangabad.
Therefore, relying upon the averments in the
affidavit-in-reply, annexures thereto, the
learned counsel for added respondent no.4
submits that the Petition may be rejected.
11. We have given careful consideration
to the submissions of the learned counsel
appearing for the petitioner, the learned
counsel appearing for respondent no.4 and
also the learned AGP for the respondent -
State. With their able assistance, perused
the pleadings and grounds taken in the
Petition, annexures thereto, reply filed by
respondent no.4 i.e. intervenor and also
rejoinder affidavit filed by the petitioner.
It is true that this petition takes exception
to the inter se communication between the
Divisional Commissioner, Aurangabad, and the
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District Collector, Beed. Therefore, there
is much force in the contention of the
learned counsel for the intervenor -
respondent no.4 that it is not explained by
the petitioner that how the petitioner got
possession of the copy of the said
communication between two administrative
authorities of the State Government.
12. There is also considerable force in
the arguments of the learned counsel for the
petitioner that this Petition takes exception
to the inter se communication between two
authorities, and same may not be entertained.
At the outset it needs to be clarified that
this Petition raises various disputed
questions of facts including whether the
petitioner was exonerated or otherwise from
the Department Enquiry No.31/2002, which was
conducted against the petitioner and he was
held guilty by the Enquiry Officer.
Respondent no. 4 has disputed the
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authenticity of the copy of general body
Resolution placed on record by the petitioner
on the ground that no name of the proposer or
seconder is mentioned in the said Resolution
and also general body is the Competent
Authority to take decision when the employees
held guilty in the Department Enquiry to sit
over the report of the Enquiry Officer and
either to confirm the order of the Enquiry
Officer or exonerated the concerned employee.
13. Upon careful perusal of the contents
of the impugned communication, there is no
reference of letter written by Shri Vinayak
Mete, MLC, to the District Collector or to
the Divisional Commissioner. It appears that
there is reference to the complaint made by
the intervenor and the application filed by
the intervenor on 19.01.2016. Prima facie, it
appears that the complaints against the
petitioner are in the nature of not clearing
the pending proposals of the employees for
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getting benefits on completion of 12 years
period in the service. In the impugned
communication, there is specific mention
about the charge in the Department Enquiry
No.31/2002 conducted against the petitioner
in respect of filing of false birth
certificate and the action proposed by the
Enquiry Officer for the said misconduct. It
further appears from the documents placed on
record that the Sub Divisional Officer has
conducted enquiry and thereafter, after
adhering to the principles of natural
justice, has submitted report to the District
Collector and the Divisional Commissioner.
Therefore, in substance, the basis for
writing the impugned letter by the Divisional
Commissioner to the District Collector is
the report submitted by the Sub-Divisional
Officer, Beed. What is proposed by the
impugned letter against the petitioner is his
transfer from the Beed Municipal Council to
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any other Municipal Council. It is not in
dispute that in the year 2011, the
petitioner's services have been transferred
under the State Establishment. Even otherwise
also transfer is an incident of service. The
Maharashtra Civil Services (Conduct) Rules
provide for transfer of the employees. It is
not in dispute that the petitioner is serving
at Beed for a considerable period of about 17
years.
14. Therefore, viewed from any angle in
our considered opinion the impugned
communication needs no interference.
However, at this juncture, it would be
relevant to mention that the respondent State
Authorities shall apply the relevant Rules of
transfer of other employees of the Municipal
Council like applied in the cases of the
Government servants on rendering services for
a particular period. Keeping in view the
facts and circumstances of the present case
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and the documents placed on record, prima
facie, it appears that the rivalries between
the employees' groups or Union hampers the
smooth working of the Municipal Councils, and
therefore, it is desirable that the
respondent State Authorities should apply
transfer policy in accordance with the
relevant procedure / rules / Government
Resolutions even in the cases of the
Municipal council employees so as to avoid
any hindrance / disturbance to the smooth
functioning of day to day work of the
Municipal Councils. These observations cannot
be construed as mandatory direction issued by
this Court, but it is for the authorities to
introspect on the above aspect and take
necessary steps.
15. Upon perusal of the averments in the
rejoinder affidavit, it is alleged that the
order dated 06.05.2016 allegedly issued by
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the office of the Divisional Commissioner,
Aurangabad, wherein it is mentioned that the
petitioner is transferred from Beed Nagar
Parishad to Sillod Nagar Parishad, Sillod, is
fabricated document and no such order is
issued by the office of the Divisional
Commissioner. In that respect, the office of
Divisional Commissioner, Aurangabad or the
office of the District Collector, Beed, as
the case may be, will cause necessary enquiry
and find out the truth and if the said
authority comes to the conclusion that the
said appointment letter is fabricated
document, take appropriate action against
such persons who have created such fabricated
document, including initiation of criminal
proceedings against such persons. However,
it is for the State Authorities to initiate /
take appropriate action in that respect.
16. In the light of discussion in the
foregoing paragraphs, we are not inclined to
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entertain this Writ Petition, hence the Writ
Petition stands rejected.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
