Bombay High Court
Suresh Shaligram Kakad vs Chief Exe.Officer,Z.P.Akola & ... on 13 June, 2016
Bench: A.S. Chandurkar
203-J-WP-2233-03 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2233 OF 2003
Suresh Shaligram Kakad,
aged about 40 years, Occ. Service,
R/o Panchayat Samiti, At Post Barsi Takli,
Nimbi Khurd, Taluka Barsi, Takli,
District Akola. ... Petitioner
-vs-
(1) Chief Executive Officer,
Zilla Parishad, Akola,
(2) Divisional Commissioner,
Amravati Division, Amravati. ... Respondents
Shri S. V. Sirpurkar, Advocate for petitioner.
Respondent No.1 served.
Shri K. L. Dharmadhikari, Assistant Government Pleader for respondent No.2.
CORAM : A.S.CHANDURKAR, J.
DATE : JUNE 13, 2016
Oral Judgment :
By this petition, the petitioner takes exception to the orders dated
13/10/2001 and 26/12/2002.
By order dated 13/10/2001, the Chief Executive Officer, Zilla
Parishad Akola passed an order removing the petitioner from service which
was to act as a disqualification for further employment. Similarly an amount
of Rs.29160/- was directed to be recovered and the period of suspension was
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maintained as such. By order dated 26/12/2002 the appeal filed by the
petitioner challenging the aforesaid order came to be dismissed by the
Additional Commissioner Amravati Division, Amravati.
2. Facts found relevant are that the petitioner was appointed on the
post of Gramsevak in the year 1980 with the respondent No.1 Zilla Parishad.
During the course of service, he was issued a show cause notice dated
15/09/1994 calling upon him to explain as to why his services should not be
suspended and an enquiry should not be held. In the said notice, it was
alleged that the petitioner had misappropriated certain amounts resulting in
loss to the state exchequer. The petitioner submitted his reply to the
aforesaid notice denying the said charges. Thereafter a charge-sheet came to
be issued to the petitioner under provisions of Rule 4 of the Maharashtra
Zilla Parishads (Discipline and Appeal) Rules, 1964 (for short, the said
Rules). About ten charges were framed in the matter. The petitioner on
05/04/1995 issued a communication denying all the charges. During the
enquiry proceedings, the petitioner appointed one Shri R. K. Pardikar as his
representative. At the conclusion of the enquiry, the Inquiry Officer
submitted his report dated 22/09/2000. Six charges were held to be proved
while four charges were not proved. By communication dated 30/10/2000
the petitioner was called upon to explain as to why the period of suspension
should not be treated as such, the amount in question should not be
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recovered and the petitioner should not be dismissed from service. The
petitioner submitted his reply to the aforesaid communication and did not
accept the conclusions recorded in the enquiry proceedings.
Thereafter on 30/01/2001 a final show cause notice was issued
by the respondent No.1 to the petitioner. It was stated that in the initial
notice it was proposed to dismiss the petitioner from service but instead of
the same, it was intended to compulsorily retire the petitioner. The other
punishments were sought to be maintained. The petitioner submitted his
reply to the aforesaid communication on 12/02/2001 and stated that he did
not deserve such severe punishment. Thereafter on 04/07/2001, the
petitioner was informed by the respondent No.1 that the punishments as
stipulated in the earlier communication dated 30/10/2000 were being
maintained. The petitioner submitted his final statement on 13/07/2001.
Thereafter on 13/10/2001 the respondent No.1 removed the petitioner from
service, directed recovery of Rs.29160/- and treated the period of suspension
as such. The petitioner challenged the aforesaid order by filing an appeal
before the Additional Commissioner. The Additional Commissioner
maintained the order passed by the respondent No.1 and dismissed the
appeal. Being aggrieved, the present writ petition has been filed.
3. Shri S. V. Sirpurkar, the learned counsel for the petitioner
submitted that both the Authorities were not justified in holding against the
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petitioner. It was submitted that in the enquiry proceedings, the petitioner
did not have proper opportunity to put forth his case. Though the petitioner
was permitted to appoint his representative in the enquiry proceedings, the
Inquiry Officer by giving false hopes to the petitioner, told the petitioner not
to insist for the presence of his representative in the further proceedings. It
was submitted that there was clear violation of provisions of Rule 6(9) of the
said Rules inasmuch as the Disciplinary Authority was not the enquiring
Authority and therefore as per the said provision, it was necessary for the
Disciplinary Authority to have recorded its independent finding against each
charge. This was however not done. It was then submitted that as per
initial notice dated 30/10/2000, the Disciplinary Authority sought to impose
a punishment of dismissal from service along with recovery of the amount in
question. However, in the subsequent notice dated 30/01/2001, the
punishment of compulsory retirement was sought to be imposed upon the
petitioner. The petitioner had submitted his reply to the said notice but
ultimately on 04/07/2001, the Disciplinary Authority again observed that the
petitioner was liable to be dismissed from service. He submitted that in the
statutory appeal preferred by the petitioner all these grounds had been
specifically raised but the Appellate Authority in a cryptic manner dismissed
the said appeal. It was therefore submitted that both the orders deserve to
be set aside and the petitioner deserves to be reinstated in service. In
support of his submissions, the learned counsel placed reliance on following
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decisions :
(a) (1996) 3 Supreme Court Cases 364 State Bank of Patiala and
ors. v. S.K. Sharma
(b) AIR 1990 Supreme Court 1402 Km. Neelima Misra v. Dr
Harinder Kaur Paintal and ors.
(c) (2010) 13 Supreme Court Cases 427 Oryx Fisheries Pvt. Ltd. vs.
Union of India and ors.
(d) (2006) 4 Supreme Court Cases 713 Narinder Mohan Arya v.
United India Insurance Co. Ltd. and ors.
(e)
(2012) 6 Supreme Court Cases 357 Registrar General, High
Court of Patna v. Pandey Gajendra Prasad and ors.
4. Though the writ petition was heard on 08/06/2016 and
09/06/2016, there was no appearance on behalf of the respondent No.1.
Even today, there is no appearance on behalf of the respondent No.1.
Shri K. L. Dharmadhikari, the learned Assistant Government
Pleader for the respondent No.2 supported the order passed by the
respondent No.2.
5. I have considered the submissions as urged and I have also gone
through the entire material placed on record. The enquiry in question was
held against the petitioner under the said Rules. It is not in dispute that
while respondent No.1 was the Disciplinary Authority, the enquiring
Authority was the Special Officer (Enquiries) from the office of the
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respondent No.1. In such situation, Rule 6(9) of the said Rules requires that
where the Disciplinary Authority is not the enquiring Authority then the
Disciplinary Authority has to consider the record of the enquiry and then
record its findings against each charge. The communication dated
30/10/2000 issued by the Disciplinary Authority does not indicate that each
charge has been considered along with the record of the enquiry and a
finding against each charge has been recorded. At least the said
communication does not indicate so.
6. Against the order passed by the Disciplinary Authority, the
petitioner has preferred an appeal under Rule 14 of the said Rules. Rule
21(2) of the said Rules requires amongst other things that the Appellate
Authority has to consider whether the procedure prescribed in the said Rules
while holding the enquiry has been complied with or not and whether such
non-compliance has resulted in failure of justice. Similarly, it also has to
consider whether the findings recorded by the Inquiry Officer are justified
and further whether the penalty imposed is excessive, adequate or
inadequate.
Perusal of the appeal preferred by the petitioner indicates that he
had raised various grounds challenging the order dated 13/10/2001. It was
his specific ground that a proper opportunity was not furnished in the
enquiry proceedings. There is also a ground with regard to non-supply of
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necessary documents as demanded by the petitioner. Considering the
statutory requirement of Rule 21(2) of the said Rules, the respondent No.1
ought to have considered all these aspects before deciding the appeal. The
order passed by the respondent No.2 in the appeal however does not reflect
due consideration of any of these requirements that were necessary to have
been considered under Rule 21 (2) of the said Rules.
7.
Though it was strongly urged on behalf of the petitioner that the
entire proceedings stand vitiated on account of failure of the principles of
natural justice while holding the enquiry, in absence of any finding in that
regard being recorded by the Appellate Authority, I do not find it proper to
consider said aspect at this stage. As stated above, one of the requirements
of Rule 21(2) of the said Rules is as to whether the enquiry has been
conducted in accordance with the said Rules.
In Oryx Fisheries Private Limited (supra) which was rightly
relied upon by the learned counsel for the petitioner it has been observed by
the Honourable Supreme Court that it is necessary to record reasons when a
quasi judicial Authority decides proceedings before it. Similarly in paragraph
33 of the judgment of the Supreme Court in Narinder Mohan Arya (supra)
it has been observed that even if the Appellate Authority agrees with the
order passed by the Disciplinary Authority, the order must reflect proper
application of mind with regard to compliance with requirements of law. In
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view of this legal position, I find that the order passed in appeal by the
respondent No.2 dated 26/12/2002 is liable to be set aside.
8. Though the learned counsel for the petitioners submitted that this
Court can decide the proceedings finally, considering the involvement of
various factual aspects with regard to grant of proper opportunity of hearing
and breach of principles of natural justice, I find that these questions can be
urged before the respondent No.2 in the statutory appeal which appeal can
be directed to be heard afresh.
9. In view of aforesaid, the following order is passed :
(i) The order dated 26/12/2002 passed by the respondent No.2 is set
aside.
(ii) The appeal filed by the petitioner is restored. Said appeal shall be
decided by the respondent No.2 in accordance with law and after
considering the observations made herein above.
(iii) As the proceedings are quite old, the same should be decided
within period of three months from the date of appearance of the
petitioner before the respondent No.2. The petitioner shall
appear before the respondent No.2 on 27/06/2016. On said date,
he shall place on record copy of this order to enable the
respondent No.2 to take further steps in the matter.
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(iv) The points raised on merits of the dispute are kept open for being
urged before the respondent No.2.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Asmita
