Bombay High Court
Alka Dashrath Pawar vs The Additional Divisional ... on 15 March, 2016
Bench: R.V. Ghuge
WP 11998/15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11998/2015
Alka d/o Dashrath Pawar,
Age : 33 years, Occ. Service,
R/o. Q-6/5, Ramnagar, N-2, CIDCO,
Aurangabad.
ig ...Petitioner...
Versus
1 The Additional Divisional
Commissioner, Aurangabad.
2 The Chief Executive Officer,
Zilla Parishad, Aurangabad.
...Respondents...
.....
Shri P.B. Salunke, Advocate for the petitioner.
Shri D.R. Korde, AGP for respondent no.1.
Shri A.R. Salve, Advocate for respondent no.2 (Absent).
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 15.03.2016
ORAL JUDGMENT :
1] The petitioner is aggrieved by the impugned
order dated 30.12.2015 passed by respondent no.1 by which
his Appeal No.102/2011 has been dismissed.
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2] Shri Salunke, learned Advocate for the
petitioner, has strenuously contended that the charge
leveled upon him was with regard to a change effected in
the caste column of the admission register. Respondent
no.2 - Zilla Parishad initiated a domestic enquiry
against the petitioner. She was placed under suspension.
3] He further submits that after the enquiry was
concluded on 3.12.2007, the enquiry report dated
3.12.2007 was submitted wherein the petitioner has been
exonerated of the first two charges on the ground that
the petitioner has not caused any interpolation in the
admission register and had not effected any change in the
caste of a candidate, under the caste column. One
Mr.Tarav, maintaining the admission register, was held
responsible for effecting such changes.
4] Shri Salunke further strenuously submits that
though the Enquiry Officer has held him partly guilty of
two charges, they are of minor character and the
punishment of stoppage of one annual increment
permanently amounts to a disproportionate punishment.
5] He further submits that though the enquiry
concluded on 3.12.2007, her suspension was continued till
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13.8.2008. During her entire period of suspension, she
was paid only 50% of her salary as subsistence allowance.
After three months of suspension, the said allowance
should have been enhanced to the maximum of 75% in the
light of Rule 68 of the Maharashtra Civil Services
(Joining Time, Foreign Service and Payments during
Suspension, Dismissal and Removal) Rules, 1981,
(hereinafter referred to as the 1981 Rules).
6] He further submits that her representation dated
25.9.2008 for payment of subsistence allowance under Rule
68 is still pending with respondent no.2 and the same is
undecided. Shri Salunke then submits that the order of
punishment may be set aside and in the event this Court
is not inclined to interfere with the said punishment,
the stoppage of one annual increment permanently be
reduced to a stoppage for one year.
7] The learned AGP appearing on behalf of
respondent no.1 has strenuously supported the impugned
judgment. He submits that the charges proved against the
petitioner can be seen from the Enquiry Officer's report.
Though she has not been held guilty of causing
interpolations or manipulation with regard to the
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admission register, she has been held guilty of the other
charges, which cannot be said to be of a minor character.
8] Respondent no.2 - Zilla Parishad has been served
and has caused appearance through an Advocate. None
appeared for respondent no.2 on 19.1.2016. Adjournment
was sought on 9.2.2016 by respondent no.2 and again a
similar adjournment was sought by him on 2.3.2016.
Nobody has appeared for respondent no.2 today.
9] I have considered the submissions of the learned
Advocate for the petitioner and the learned AGP.
10] Respondent no.1 has considered the appeal of the
petitioner. All her contentions were considered in the
light of the Enquiry Officer's report and the evidence
available. By the impugned judgment, respondent no.1 has
dismissed the appeal on the ground that the punishment is
commensurate to the seriousness and the gravity of the
mis-conducts proved against the petitioner.
11] It is trite law that merely because a punishment
may appear to be disproportionate, would not be a ground
for the Court to interfere in such a punishment. The
punishment must be shockingly disproportionate, in a
sense that no prudent disciplinary authority would have
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awarded such a punishment considering the gravity and
seriousness of the mis-conducts. This Court, in the
matter of Shivaji Daulat Dadar v. Divisional Controller,
MSRTC, Ahmednagar Division (2016 (2) Mh.L.J., 87) (March
issue), has concluded that unless the punishment is
shockingly disproportionate, no interference can be
caused.
12] I have considered the Enquiry Officer's report
in the light of the submissions of the petitioner. The
oral and documentary evidence on record indicates that
the petitioner had issued the certified copies of the
concerned documents from the admission register in favour
of a person whose caste was interpolated in the
attendance register. Had the petitioner been diligent
and cautious, she would have looked into the
interpolation before approval. I, therefore, find that
the conclusions drawn by the Enquiry Officer do not
deserve to be interfered with.
13] The punishment awarded to the petitioner is
stoppage of one annual increment permanently. I find no
reason to cause any interference in the said punishment.
This petition to that extent, therefore, fails.
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14] The petitioner has made a grievance as regards
payment of subsistence allowance only at the rate of 50%
during her entire tenure of suspension. Reliance has
been placed on Rule 68 for the said purpose. A
representation dated 25.9.2008 is pending before
respondent no.2 wherein the petitioner has raised an
issue of violation of Rule 68(1)(a)(i) and (ii). Said
issue was not before respondent no.1 for adjudication
since the entire enquiry proceedings will have to be
scanned to arrive at a conclusion that the enquiry was
not delayed at the best of the petitioner and hence she
would be entitled for enhancement in suspension
allowance.
15] I am of the view that a direction to respondent
no.1 to decide the representation of the petitioner
would meet the ends of justice in the light of Rule 68 of
the 1981 Rules within a period of three months from
today.
16] In the event the petitioner desires to replace
the representation dated 25.9.2008 by filing a fresh
representation, she may do so. If such a fresh
representation is filed, the same shall be decided by
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respondent no.2 within three months from the date of its
receipt.
17] In the light of the above, this petition fails
to the extent of the challenge to the impugned judgment
delivered by respondent no.1. Rule is, therefore,
discharged. No order as to costs.
(RAVINDRA V. GHUGE, J.)
ndk/c1531623.doc
