Bombay High Court
Datta Vishwanath Mulay vs The Maharashtra Centre For ... on 17 April, 2017
Bench: S.V. Gangapurwala
1 W.P.No.7961/16
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.7961 OF 2016
Mr.Datta S/o Vishwanath Mulay,
Age 56 years, Occ.Nil,
R/o Sudarshan Colony, Behind
Government ITI,MIDC Area,
Near Railway Station Road,
Auragnabad, Dist.Aurangabad. ... Petitioner.
Versus
1. The Maharashtra Centre for
Entrepreneurship Development
through its Chairman/Executive
Committee, Krupanidhi Building,
Balard Estate, Mumbai.
2. The Executive Director,
The Maharashtra Centre for
Entrepreneurship Development
MIDC, Near Railway Station,
Aurangabad, Dist.Aurangabad. ... Respondents.
...
Mr.V.D.Sapkal, advocate for the petitioner.
Mr.A.P.Basarkar, A.G.P. for the State.
Mr.S.S.Chapalgaonkar, advocate for Respondent
No.1.
...
CORAM : S.V.GANGAPURWALA AND
SANGITRAO S. PATIL,JJ.
Date : 17.04.2017.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. Heard.
2. Leave to amend. Amendment be carried
out forthwith.
3. Rule. Rule returnable forthwith. With
the consent of the parties,the petition is taken
up for final hearing.
4. The petitioner initially had assailed
the order dated 9.3.2012, issued by the
Respondent No.2, thereby terminating him. The
appeal filed against the said order came to be
dismissed. The petitioner thereafter approached
the Governing Council. The Governing Council
modified the punishment and demoted the
petitioner. Aggrieved thereby, the present Writ
Petition is filed.
5. During the pendency of the present Writ
Petition, the Governing Council has further
modified the punishment in its meeting dated
13.4.2017, thereby has agreed to reinstate the
petitioner on his original post and has imposed
minor punishment of stoppage of two increments.
So also has taken a decision not to give back
wages from the date of termination till the date
of reinstatement. By amendment the same is also
assailed.
6. Mr.Sapkal, learned counsel for the
petitioner submits that the charges levelled
against the petitioner were not serious charges.
There were no charges of misappropriation. The
charges were about non-adherence of proper
procedure. The learned counsel submits that the
petitioner was not given proper opportunity nor
the inquiry has been conducted in a proper
manner. According to the learned counsel, the
impugned order is erroneous. The petitioner be
reinstated in service with full back wages and
also the minor punishment imposed deserves to be
set aside.
7. Mr.Chapalgaonkar, learned counsel
submits that out of seven charges three charges
are proved and one charge is partially proved.
The Governing Council has taken a lenient view
and has modified the punishment. Minor
punishment is imposed of stoppage of two
increments. On the basis of principle of "no
work no pay" the petitioner would not be entitled
for back wages. Moreover, the petitioner has
approached this Court belatedly. The appeal has
been dismissed in 2013 and the petition is filed
in the year 2016. The petitioner can not take
advantage of his own wrong.
8. We have considered the submissions
canvassed by the learned counsel for respective
parties.
9. After conclusion of the departmental
proceedings, the punishment is imposed upon the
petitioner. Three charges are said to have been
proved and one charge is partially proved.
10. Upon perusal of the charges, it appears
that the charges against the petitioner were not
with regard to any misappropriation but were with
regard to non-observance of proper procedure,
non-communication.
11. This Court in exercise of its writ
jurisdiction would not sit as an appellate
authority over the evidence appreciated by the
Inquiry Officer, so also the decision taken and
confirmed in appeal.
12. It would appear that the Governing
Council itself came to the conclusion that
initial punishment imposed upon the petitioner is
harsh and is disproportionate. As such has
modified the major penalty imposed upon the
petitioner and awarded minor penalty of stoppage
of two increments. The said punishment can not
be said to be disproportionate.
13. As far as back wages are concerned, it
would appear that the petitioner was initially
dismissed from service on 9.3.2012. Thereafter,
his appeal also came to be dismissed in 2013. The
Governing Council in 61st meeting took a decision
to modify the punishment of dismissal from
service to reversion of the petitioner to lower
post. The said decision it appears is taken in
the year 2016, thereby the Governing Council was
convinced that punishment imposed is
disproportionate to the charges levelled and
proved against the petitioner and now
subsequently has again modified the said
punishment by imposing minor penalty of stoppage
of two increments.
14. The punishment is already imposed upon
the petitioner of stoppage of two increments, we
are not inclined to interfere with the said
punishment. Considering that the Governing
Council itself has twice modified the punishment
imposed upon the petitioner, it was not fault of
the petitioner for not having worked, we are
inclined to award 50% back wages to the
petitioner from the date of termination till
today. The petitioner is at liberty to join his
original post immediately.
15. The Respondent shall pay 50% back wages
to the petitioner as directed preferably within
three (3) months. Though we have not awarded
total back wages, however, the period from
termination of service of the petitioner till
reinstatement shall be counted for the purpose of
continuity and all other consequential benefits.
16. Rule accordingly made absolute in above
terms. No costs.
(SANGITRAO S. PATIL,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp7961.16
