Bombay High Court
Patilba Raoji Khemnar vs Ahmednagar Municipal ... on 3 October, 2016
Bench: R.V. Ghuge
WP/2105/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2105 OF 2016
Patilba Raoji Khemnar,
Age 53 years, Occ. Service
R/o 'Shri Swami Samarth'
Swarnanagar, Kedgaon,
Ahmednagar. ..Petitioner
Versus
Ahmednagar Municipal
Corporation, Ahmednagar
through it's Commissioner.
ig ..Respondent
...
Advocate for Petitioner : Shri Barde P.V.
Advocate for Respondent : Shri Lokhande K.N.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 03, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the judgment dated 28.10.2015,
WP/2105/2016
by which, Complaint (ULP) No.69 of 2012 has been dismissed by the
Industrial Court.
5. Learned Advocate for the petitioner strenuously submits that
the enquiry conducted against him is vitiated for the following
reasons:-
(a) False charges are levelled upon him,
(b)
The charge sheet is vague and ambiguous,
(c) List of witnesses was not annexed to the charge sheet,
(d) Specific clauses of the Discipline and Appeal Rules were
not mentioned,
(e) Documents were not supplied along with the charge
sheet,
(f) Insignificant witnesses have been examined by the
management,
(g) The petitioner has not committed any misconduct.
(h) Suspension allowance has not been fully paid.
(i) Punishment of stoppage of one increment permanently
and considering the period of suspension as a part of
punishment is unsustainable.
WP/2105/2016
6. Learned Advocate for the respondent / Corporation has
supported the impugned judgment.
7. He submits that;
(a) the charge sheet specifies the charges of misconduct.
(b) suspension allowance has been properly paid and if
there is any deficit amount, the same will be paid,
(c) whichever documents were produced in the enquiry,
were made available to the petitioner,
(d) management witnesses were cross examined,
(e) a minor punishment of stoppage of one increment has
been awarded, looking at the gravity of the misconduct, and
that
(f) the Industrial court has rightly dismissed the complaint.
7. I have considered the submissions of the learned Advocates.
8. The petitioner was working in the Electric Department. There
were several complaints about his work and about a live electric wire
having got detached from the electric pole and was lying on the
road. This was brought to the notice of the petitioner. Yet he did not
WP/2105/2016
perform his duties. It was the good fortune of the petitioner that no
individual was injured due to the live electric wire lying on the road.
9. The enquiry cannot be set aside, merely on allegations. The
Honourable Apex Court has laid down the law in the matter of State
Bank of Patiala and others Vs. S.K.Sharma [AIR 1996 SC 1669],
wherein it is concluded that the enquiry cannot be vitiated if
procedural rights are violated. Only if substantive rights have been
violated, the grievances of the delinquent can be considered on the
touchstone of prejudice.
10. The respondent was right in contending that the live wire
could have come into contact with any human being and that would
have led to a grave injury or death. Whether such an accident has
occurred or not is not to be considered since that cannot be a ground
for showing leniency. The respondent has already shown leniency by
awarding the punishment of stoppage of one increment only.
11. It is trite law that if the charges are not proved against an
employee, his suspension period has to be treated as duty period.
However, if the charges are proved, the delinquent cannot claim full
wages for being under suspension during the pendency of the
disciplinary proceedings.
WP/2105/2016
12. It appears from the impugned judgment of the Industrial Court
that the petitioner has not pointed out specific instances of the
charge sheet containing vague and ambiguous charges. The enquiry
cannot be set aside on trivial grounds in the light of the law laid
down in the case of State Bank of Patiala (supra). Allegations against
the enquiry have to be tested on the touchstone of prejudice. Not
supplying documents or list of witnesses at the time of issuing the
charge sheet cannot be the ground for setting aside the enquiry,
since the Evidence Act and the Code of Civil Procedure are not
applicable to departmental enquiries.
13. In the light of the above, this petition being devoid of merits is
dismissed. Rule is discharged. However, in the event, any portion of
the subsistence allowance during the suspension period has not been
paid as per Rules, the respondent shall calculate the same strictly in
accordance with the Rules applicable and in the event any amount
stands unpaid, the same shall be paid within a period of twelve
weeks from today.
( RAVINDRA V. GHUGE, J. )
...
akl/d
