Sheikh Chotu Sheikh Bhiku vs The Additional Commissioner, ...
2016 Latest Caselaw 5809 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 1058 OF 2015




                                                                   
    Sheikh Chotu Sheikh Bhiku,
    aged about 44 years, Occupation
    Assistant Teacher, Nagar Parishad
    Urdu Primary School No.3, Karanja




                                                                  
    Lad, Tq. Karanja Lad, Distt. Washim.                              ... PETITIONER

                                               VERSUS

    1. The Additional Commissioner,




                                               
         Amravati Division, Amravati.

    2. The Chief Officer,
                             
         Municipal Council, Karanja Lad,
         District Washim.                                           ... RESPONDENTS
                            
                                         ....
    Shri N.S. Warulkar, Advocate for the petitioner.
    Shri H.R. Dhumale, Assistant Government Pleader for respondent No.1.
    Shri M.I. Dhatrak, Advocate for respondent No.2.
      

                                         ....
   



                                            CORAM : PRASANNA.B.VARALE, J.

DATED : 01ST OCTOBER, 2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties. Shri H.R. Dhumale, learned Assistant Government Pleader waives

notice on behalf of respondent No.1 and Shri M.I. Dhatrak, the learned

Counsel waives notice on behalf of respondent No.2.

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2. By way of present petition, the petitioner challenges the order

dated 19th January, 2015 passed by the Additional Commissioner, Amravati

Division, Amravati.

3. The brief facts which give rise to the filing of the present

petition can be summarized as under :-

The petitioner was appointed as Assistant Teacher in

Municipal Council School at Karanja Lad, District Washim in the year 1996

and since then he is discharging his duties. On 27.02.2013, one Municipal

Councillor Smt. Rubina Khanam w/o Nurulla Khan submitted an

application to the President of Municipal Council, Karanja Lad. It was

submitted in the application that some of the residents of the area wherein

the Councillor resides, approached to her and made oral complaint against

the teachers of Urdu School No.2 of the Municipal Council. It was further

stated in the application that on receiving the oral complaint, the

Councillor deputed her husband to make an enquiry in the school. On

enquiry made by the husband of the Councillor, it was the opinion of the

Councillor that the Headmaster who was present in the school was giving

evasive replies. It was then submitted in the application that when further

enquiry was made, the petitioner abused the husband of the Councillor,

gave him threats and he further stated that the husband of the Councillor

should not attend the school in future without seeking any permission

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from the authorities, otherwise he would face the police action. It was

stated in the application that as the petitioner threatened the husband of

the Councillor, a notice was issued to the petitioner calling upon him to

submit his reply.

The petitioner submitted his reply denying any such incident

of giving threats to the husband of the Councillor. He further stated in his

reply that the husband of the Councillor himself abused the teachers in the

School and uttered derogatory statements as well as the statements

lowering down the images of the teachers. In the reply, it is further

submitted that because of such false complaint against the petitioner, the

petitioner is under tremendous mental pressure and is unable to discharge

his duties and unable to concentrate on teaching the students. Again on

30.03.2013, a charge sheet was issued to the petitioner alleging certain

misconduct under the Maharashtra Civil Services Act and the Rules. The

petitioner replied the said charge sheet. By order dated 15.07.2014, the

petitioner was subjected to an action withholding the increments of the

petitioner for two years as well denying the future promotion to the

petitioner and also the petitioner was transferred from Urdu School No.2

of the Municipal Council to Urdu Primary School No.3. Feeling aggrieved

by the said order, the petitioner submitted the revision. The Additional

Commissioner finding that the punishment awarded to the petitioner was

harsh one and modified the said punishment. The Commissioner in stead

withholding two increments for two years, reduced the punishment to one

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year effecting on further increments and held that the petitioner is entitled

for further promotion subject to the petitioner fulfilling the conditions laid

down by the School Administration.

3. Shri Warulkar, the learned Counsel for the petitioner

vehemently submits that the action initiated against the petitioner itself

was untenable and that the Commissioner in his order found that the

exercise undertaken against the petitioner was wholly untenable, allowed

the revision petition partly and modified the order of imposing the

punishment. It is further the submission of the learned Counsel that when

it was observed by the Additional Commissioner that the action against the

petitioner itself was not sustainable, the learned Commissioner ought to

have allowed the revision in stead allowing the revision partly.

4. Shri Dhatrak, the learned Counsel for respondent No.2 and

Shri Dhumale, the learned AGP for respondent No.1 support the order

impugned in the judgment.

5. On hearing the learned Counsel appearing on behalf of the

respective parties and on going through the material placed on record, I

am of the opinion that the order passed by the Commissioner impugned in

the petition is clearly unsustainable. There is merit in the submission of

Shri Warulkar, the learned Counsel for the petitioner that the exercise

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undertaken against the petitioner itself was untenable. Perusal of the

material clearly shows that it was the husband of the Councillor who

visited the School and started enquiring with the teachers. Perusal of the

application of the said Councillor itself shows that on receiving the

complaint from the parents, the Councillor directed her husband to cause

enquiry in the school. One could understand that the Councillor being the

representative of the people on receiving certain complaints from the

parents about the mal administration in the Municipal Council Schools,

could have visited the school and could have spotted the situation

personally. In stead of undertaking such an exercise, the petitioner

directed her husband to visit the school and conduct enquiry. It would be

interesting to note that the Additional Commissioner in clear and

unambiguous words observed in his order thus :-

"On the basis of the complaint as she mentioned in the written complaint that she send her husband to verify that

complaint. The question arises that under what authority/provision she has sent her husband to verify the complaint. She has no authority to send her husband to verify the complaint against School Teacher. She could have

called information from School Head Master. In the said complaint, the petitioner-Sheikh Chotu Sheikh Bhiku has objected to her husband and threatened him not to come School without permission. I think this is the right course of action adopted by the petitioner. Her husband has no business to go into the premises of the School and enquire

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about the business of School. Husband of the said Municipal

Councillor has not concerned with the School Administration. The Petitioner has rightly warned the

husband of the Municipal Councillor not to enter into School premises on behalf of the Municipal Councillor." (emphasis supplied).

The learned Additional Commissioner then further observed in his order

that the Headmaster of the School was responsible for not keeping control

over the staff. On the backdrop of these facts, the Commissioner found

that the allegations against the petitioner are not serious. The

Commissioner further found that it was the fault of the school

administration for not maintaining the muster roll properly and verifying

the muster roll periodically. Considering this aspect, the Additional

Commissioner modified the punishment awarded to the petitioner. When

it was found by the Additional Commissioner that the entry of the husband

of the Councillor in the school and making enquiry with the teaching staff

of the school itself was a questionable act and the husband of the

Councillor either had no authority or concern to play any role in the school

administration. The punishment awarded to the petitioner on an enquiry

of such a person who is having no authority is certainly untenable.

6. As stated above, the Commissioner also found fault with the

Headmaster and the school administration and if it was the opinion of the

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Additional Commissioner that the Headmaster and the school

administration were at fault for not maintaining the muster roll properly

and verification of the school record, in that case there was no reason to

award punishment to the petitioner. The Additional Commissioner thus

erred in modifying the punishment awarded to the petitioner. It is also

interesting to note that a charge was levelled against the petitioner for

remaining absent in the school without any leave and on that charge, the

punishment was awarded. The Additional Commissioner in clear terms

observed thus :-

"If the petitioner was frequently absent from the school then only the Departmental Enquiry could have been conducted against the petitioner. However, the respondent No.1 has

started the Departmental Enquiry on the premature charge."

Such order of punishment was clearly untenable and unsustainable. On

that aspect also, the Additional Commissioner ought not to have modified

the punishment and the revision ought to have been allowed by the

Additional Commissioner.

7. Considering all these aspects, I am of the opinion that the

learned Counsel for the petitioner has made out a case for allowing the

petition. The petition is allowed. The order of the Additional

Commissioner, Amravati Division, Amravati is quashed and set aside. The

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order dated 15.07.2014 passed against the petitioner thereby awarding the

punishment of withholding two increments denying the future promotion

to the petitioner and his transfer from School No.2 to School No.3 is also

quashed and set aside.

The petition is allowed in the aforesaid terms. Rule is

accordingly made absolute.

                              ig                                    JUDGE 
              
           
    *rrg.
                            
      
   







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                                   C E R T I F I C A T E




                                                              

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