Bombay High Court
Dattatraya Nagnath Bhadakawad vs The State Of Maharashtra, Through ... on 19 October, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5173 OF 2013
Dattatraya s/o Nagnath Bhadakawad,
Aged 43 years, Occu. Service as
Additional Residential Deputy Collector,
Thane, Headquarter Jawahar, Dist. Thane,
R/o. C-1, Pitambar, Shri Complex,
Belawali Badlapur (W),
Tq. Ambarnath, Dist. Thane. ....Petitioner
Vs.
1 The State of Maharashtra,
Through the Secretary,
In the Department of Urban Development,
Mantralaya, Mumbai-32.
2 The Assistant Registrar,
In the office of Maharashtra
Lokayukta, in front of Mantralaya,
Administrative Building, Mumbai.
3 The Commissioner,
Municipal Corporation, Ulhasnagar,
Dist. Thane.
4 Shri Vishwas s/o Prabhakar Shende,
Aged Major, Occu; Journalist,
R/o. "Dainik Mumbai Mitra",
Maha-janshakti-404, Nirman Co-op.
Society, Veer Sawarkar Marg,
Ulhasnagar, Dist. Thane. ....Respondents.
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WITH
WRIT PETITION NO. 5171 OF 2013
Suresh s/o Keshav Gholap ....Petitioner
Vs.
The State of Maharashtra & Ors. ....Respondents
WITH
WRIT PETITION NO. 5172 OF 2013
Uttam s/o Shivram Lonare ....Petitioner
Vs.
The State of Maharashtra & Ors. ....Respondents
WITH
WRIT PETITION NO. 6353 OF 2013
Mohan s/o Sachanand Chijwani ....Petitioner
Vs.
The State of Maharashtra & Ors. ....Respondents
Mr. A.N. Irpatgire for the Petitioner in all the matters.
Mr. Suresh M. Kamble for Respondent No.3 in all the matters.
Mr. C.P. Yadav, AGP for the Respondent-State in all the matters.
CORAM : ANOOP V. MOHTA AND
G.S. KULKARNI, JJ.
DATE : 19 OCTOBER 2016.
ORAL JUDGMENT (PER G.S. KULKARNI, J.):-
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This batch of Petitions are filed by the Officers of the
Government of Maharashtra, being aggrieved by the
report/recommendation made by the Hon'ble Lokayukta dated 26
September 2011 to the Government of Maharashtra in case
No.LO/Com/2686/2009 (T-1) and the consequent letter issued by
Respondent No.1 dated 23 May 2013 to Respondent No.3-the
Commissioner, Municipal Corporation, Ulhasnagar, District Thane.
The grievance of the Petitioner is that the Hon'ble
Lokayukta ought not to have made the impugned report without
following the procedure under Section 10 of the Maharashtra
Lokayukta and Upa-Lokayuktas Act, 1971 (for short 'the Act'),
inasmuch as a hearing ought to have been granted to the Petitioner
before making any recommendations. It is submitted that the report
contemplates Civil and Criminal prosecution against the Petitioner and
therefore, it was necessary for the Hon'ble Lokayukta to follow the
procedure under Section 10 of the Act.
3 A reply affidavit has been filed by the Assistant Registrar,
Office of the Hon'ble Lokayukta, inter-alia clarifying the position.
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What can be seen from the reply affidavit is that the Hon'ble
Lokayukta has not undertaken any independent inquiry, but has
merely recommended that the report of one-man inquiry committee,
headed by Shri Asim Gupta (Inquiry Officer as appointed by the
Government of Maharashtra), to be acted upon. The relevant extract
of the affidavit as contained in paragraph No. 8, reads as under:-
"8. I say that Hon'ble Lok-Ayukta has only
recommended that the report of Shri Asim Gupta dated
02/06/2008 shall be taken into account and those
officers/ public servant who are indicted therein shall be
proceeded with civil /criminal prosecution against them.
It is made clear that no individual enquiry in respect of
the member of committee (recruitment) was ever held by
Hon'ble Lok-Ayukta. The enquiry was only limited,
about taking action on the report of Shri Asim Gupta by
the Government. Therefore question of issuing any
notices to those public servants who were member of the
said Committee, in regard to recruitment process of the
staff in said Corporation, under Rule 15 of Maharashtra
Lok-Ayukta and Upa-Lokayuktas Rules 1974 will never
arise. No individual recommendation against any of the
public servant was made by Hon'ble Lok-Ayukta. There
was absolutely no violation of principal of natural
justice."
4 A reply affidavit is also filed by the Deputy Commissioner
(HQ) of Ulhasnagar Municipal Corporation. This affidavit reveals
that, in the year 2003, a recruitment drive was undertaken to fill up
the vacant reserved posts. A selection Committee was constituted as
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contemplated under Section 54 of the Bombay Provincial Municipal
Corporation Act, 1949. After the appointment process was completed,
certain complaints were received in regard to the said recruitment. In
pursuance of these complaints, the Urban Development Department,
Government of Maharashtra appointed Shri Asim Gupta, the then
Municipal Commissioner of Aurangabad Municipal Corporation as a
one-man committee to inquire into the allegations made in the
recruitment process. Mr. Asim Gupta, submitted a report to the
Government of Maharashtra dated 2 June 2008.
5 It can be thus seen that what was inquired into by one-
man committee of Mr. Asim Gupta was a basic fact findings exercise or
an inquiry, as regards allegations as made in the complaint.
6 A perusal of the affidavit filed by the Assistant Registrar of
the Hon'ble Lokayukta also clearly indicates that there is no
independent inquiry undertaken by the the Hon'ble Lokayukta. If the
State Government has some material, including material on the basis
of the report of one-man Committee of Mr. Asim Gupta, to take any
departmental action or any other appropriate action against the
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Petitioner, then surely the State Government has to independently
consider these facts and take appropriate action as permissible in law.
7 It is thus clear that the Hon'ble Lokayukta has not taken
any independent inquiry/investigation and has merely made
recommendation on the basis of report of Mr. Asim Gupta, a one-man
committee. The position is further clarified in view of the statement
as made in para 13 of the affidavit filed by the Assistant Registrar of
the Hon'ble Lokayukta which reads thus:-
"13. As per the statute as stands today, Hon'ble Lok-
Ayukta being Ombudsman can make only
recommendation to the competent authority. It is for the
competent authority to execute the recommendations
meaningfully, so as to take action against the erring
public servant. The recommendations of Hon'ble Lok-
Ayukta are in consonance with the rules of Law."
8 Considering the above facts, we are of the clear opinion
that, the recommendations of the Hon'ble Lokayukta as assailed in the
Petition, are not as a consequence of an inquiry under Section 10 of
the Act. The Hon'ble Lokayukta has only brought it to the notice of
the State Government that due consideration is required to be given
by the State Government to the report of Mr. Asim Gupta. Thus, any
action which is required to be taken, is required to be taken
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independently by the State Government in accordance with law and
the service rules, as applicable to the Petitioners. The apprehension
of the Petitioners that the Hon'ble Lokayukta has directed Civil or
Criminal action against the Petitioners without any inquiry under
Section 10 of the Act is thus not well founded.
9 In view of above discussion, the Writ Petitions do not
require any further adjudication. They are accordingly disposed of.
Interim order passed in these Petitions stand vacated.
(G.S. KULKARNI, J.) (ANOOP V. MOHTA, J.)
