Yadav Shivram Timade vs The Divisional Commissioner And 2 ...
2017 Latest Caselaw 5833 Bom

        wp2824.04.J.odt                                                                                               1/11  


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                  WRIT PETITION NO. 2824 OF 2004


             Purushottam S/o Bhaurao Dabhekar,
             Aged about 34 years, Occup-Nil.
             R/o. Gandhi Ward, Chimur,
             District - Chandrapur.                                                        .....PETITIONER

                          ...V E R S U S...

        1]  The Divisional Commissioner,
              Nagpur Region, Nagpur.

        2]  The Chief Executive Officer,
              Zilla Parishad, Chandrapur.

        3]  The Block Development Officer,
              Panchayat Samiti, Chimur.                        ...... RESPONDENTS.

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Sandeep Marathe, Advocate for the Petitioner.
        Shri A. R. Chutke, AGP for Respondent No.1.
        Shri M. V. Mohokar, Advocate for the Respondent Nos.2 and 3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 10 AUGUST, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties.

        02]                This   petition   challenges   a   disciplinary   action   of





         wp2824.04.J.odt                                                                                               2/11  

compulsory retirement taken by the Chief Executive Officer of Zilla

Parishad, Chandrapur against the petitioner, who was working as a

tracer in Panchayat Samiti, Chimur.

03] The charge against the petitioner was that whilst the

receipt and disposal of cement at the Godown of Panchayat Samiti,

Chimur was entrusted with the petitioner, upon stock taken on 7 th

May, 2002 and 8th May, 2002, the quantity of cement was found to

be less by 30 bags. According to the stock book as of 7 th May,

2002, there was stock of 2465 bags of cement at Panchayat Samiti,

Chimur but on physical counting of the stock only 2435 bags of

cement were found. The explanation furnished by the petitioner,

in this behalf, was found to be unacceptable, indicating

misappropriation of cement bags. The second charge was that on

18th April, 2002 there was an entry of allotment of 200 bags of

cement to Secretary, Gram Panchayat, Chimur but there was no

signature of the recipient on the receipt. So also, on the same day,

there was another entry of allotment of 100 bags of cement to the

Secretary, Gram Panchayat, Khadsangi -Sonegaon (Forest) but

even here there was no signature of the recipient. Gram

Panchayat, Chimur had given a statement that they had received

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196 bags as against 200 bags of cement said to have been allotted

to them, whereas Gram Panchayat, Khadsangi - Sonegaon (Forest)

had indicated that they had received only 95 out of 100 bags of

cement said to have been delivered to them. Accordingly, there was

deficiency of 14 cement bags. The third charge was a combination

of the first two charges, namely, for recovery 44 bags of cement at

twice the market rate. The fourth charge was insubordination

offered to Superior Officers. It was claimed that though the

petitioner was instructed clearly that cement issued to any Gram

Panchayat was to be delivered to the Secretary of the Gram

Panchayat, 50 bags of cement were issued to Gram Panchayat,

Hiwra without taking the signature of its Secretary and taking

simply a thumb impression of the recipient. A charge-sheet was

duly issued in this behalf by the Chief Executive Officer. In

pursuance of the charge-sheet, an enquiry was conducted by the

Special Enquiry Officer, namely, Assistant Commissioner (Enquiry),

Nagpur Division, Nagpur. Nine witnesses were examined on behalf

of the Zilla Parishad. The written statement/deposition of the

petitioner recorded before the Executive Engineer was also taken

into account. The enquiry officer, after taking into account the

charges, the explanation of the delinquent employee and the

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evidence led before him, held the charge of misappropriation of 30

bags of cement as also deficiency in issue of cement by 14 bags as

proved. Since the third charge was based on a combination of the

first two charges, it was also held to be proved. As far as, the

incident concerning Gram Panchayat, Hiwra was concerned (part

of the fourth charge), the enquiry officer held that it was not

possible to draw any inference in this behalf. Based on the report

of the enquiry officer, a show cause notice was issued by the Chief

Executive Officer of the Zilla Parishad to the petitioner for

disciplinary action on the ground of proven charges. After

considering the explanation of the petitioner, the Chief Executive

Officer awarded the punishment of compulsory retirement. This

order was carried in appeal by the petitioner before the Divisional

Commissioner, Nagpur. The Divisional Commissioner by his order

dated 17th February, 2004 rejected the appeal. Hence, the present

petition.

04] Learned counsel for the petitioner made the following

submissions :

(i) Learned counsel submits that the charge-sheet issued to the petitioner itself indicates that the Disciplinary

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Authority had already made up its mind on the proof of the charges and that the charge-sheet exhibits bias, since the Disciplinary Authority had already made up its mind. Learned counsel relies on the Hon'ble Supreme Court's decision in the case of State of Punjab..vs..V.K.Khnna and Others, reported in (2001) 2 Supreme Court Cases 330, in support of his submission.

(ii) Learned counsel also submits that the petitioner's written statement was recorded before another officer of the respondents, namely, Executive Engineer and not before the Chief Executive officer, who is the Disciplinary Authority.

(iii) Learned counsel submits that the conclusion drawn by the enquiry officer is contrary to the material available before him including the explanation tendered by the petitioner.

(iv) Learned counsel submits that the punishment awarded to the petitioner is disproportionate to the misconduct purportedly proved against him.

05] As far as the issue of pre-determination of mind or bias

is concerned, the charge-sheet merely indicates that a preliminary

enquiry made by the authority indicated the factum of

misappropriation. Though the words used are suggestive of a proof

of misappropriation, this was only a tentative finding so as to frame

a charge and not to award the punishment. Besides, the matter of

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enquiry is entrusted to an independent officer, who was expected

to go through the charge, the explanation of the delinquent and the

material produced by the employer as well as delinquent employee

in support or defence of the case and then arrive at findings of fact.

The enquiry officer has evidently offered full opportunity to the

petitioner to adduce material, to cross-examine the witnesses of the

Zilla Parishad and to make his own submissions. The enquiry

officer arrived at his findings of proven misconduct only after

this exercise. The objection to the punishment on the basis of a

pre-determined mind or bias, thus, holds no water.

06] The judgment of the Hon'ble Supreme Court in V. K.

Khanna's case is on an entirely different footing. That was a case,

where after the charge-sheet was issued to the Principal Secretary

of the Chief Minister but before even a reply could be received from

the Principal Secretary, a press statement was issued by the Chief

Minister indicating his proposal to appoint a High Court Judge for

looking into the charges. The Court held that this disclosed a

closed mindset and not a free and fair attitude towards the officer

concerned. The Court held that it was well settled in service

jurisprudence that the authority concerned has to apply its

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mind upon receipt of a reply to the charge-sheet or show-cause

notice, as the case may be, as to whether a further enquiry is called

for; only then would an enquiry follow but not otherwise. The

observations of the Supreme Court in para nos.33 and 34

concerning bias are in this context. After examining the record of

the case, the Hon'ble Supreme Court came to a positive conclusion

that announcement of the Chief Minister in regard to appointment

of an enquiry officer exhibited a pre-determined frame of mind of

the authorities and depicted bias. These observations have no

bearing on the present controversy. Here the only allegation is that

by reason of the language used in the charge-sheet, the charges are

said to be effectively proved even before the enquiry. As I have

noted above, there is no substance in that allegation.

07] As regards the contention that the written

statement/deposition was recorded before another officer, that is to

say, before an officer other than the disciplinary authority, the

identity of the officer before whom the written statement is

recorded is immaterial. The important point is the identity of the

authority or tribunal before whom such written statement is read in

defence of charges. The written statement was obviously presented

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to an enquiry officer, who was an independent officer, being the

Assistant Commissioner (Enquiry), Nagpur Division, Nagpur. It is

not the case of the petitioner that the statement was either wrongly

recorded or did not reflect the petitioner's case. If everything that

the petitioner proposed to say in defence of the charges is

contained in the written statement and such written statement is

produced before and read by an independent enquiry officer and

deliberated upon, there cannot be any failure of natural justice. It

is not a case where the delinquent is denied opportunity to show

cause.

08] On the merits of the explanation, it is pertinent to note

that what was found by the enquiry officer was that instead of

2465 bags of cement, which ought to have been stored at the

Godown of Panchayat Samiti, Chimur as of 7 th May, 2002, the

actual stock was found less by 30 bags; only 2435 bags of cement

were found at the Godown. This fact is not contested by the

petitioner. The petitioner seeks to explain this fact by submitting

that on 23rd March, 2002, a truck containing 340 bags of cement

came for unloading at the Godown of Panchayat Samiti, Chimur,

but since there was no space for the stock of 340 bags of cement,

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the truck was dispatched to Gram Panchayat, Neri which had

requirement of about 300 bags, and that this accounted for the

deficiency in the stock noted at Chimur. This explanation did not

find favour with the enquiry officer and the reasons are not far to

seek. The alleged incident of inadequacy of space for storage at

Chimur and diversion of the truck containing 340 bags of cement

to Neri is supposed to have happened on 23 rd March, 2002, that is

to say, much before the stock taking of 7th May, 2002. The case of

the Zilla Parishad is that whereas the stock at Chimur as of 7 th May,

2002 was to be 2465 bags, actual stock noticed was 2435 bags.

This was in accordance with the stock book maintained at Chimur,

wherein the stock entries were in accordance with physical stock

verified at Chimur. The physical verification itself is not contested

by the petitioner. If that is so, then it implies that there was as of

7th May, 2002 an entry of physical stock at Chimur of 2465 bags of

cement. As against this, the actually verified quantity, i.e. the stock

actually noticed as of 7th & 8th May 2002, was 2435 bags. Once

again, the physical assessment of the stock is not a matter of

contest. (Though the petitioner contests the presence of the

agriculture officer, Mr. D. T. Suphale, on 8 th May, 2002, on account

of duties assigned to him at Chandrapur on that day, this does not

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raise a serious cloud of suspicion over the actual verification of the

stock. Besides, the quantity verified in stock is not contested as

noted above.) If, in the face of these facts, the enquiry officer does

not accept the petitioner's explanation and holds him responsible

for 30 missing bags, it certainly cannot be said that the conclusion

drawn by the enquiry officer is in any way perverse. Perversity

which a writ court is concerned with in the case of a challenge to a

domestic inquiry or its findings is perversity as understood by the

Wednesbury Principle. If the conclusion of the enquiry officer

cannot be said to be one based on no evidence or which is arrived

at after taking into account non-germane or irrelevant material or

by disregarding relevant and germane material, there is no case for

interfering with it. Neither of these ingredients is satisfied in the

present case. Thus, the conclusion drawn by the enquiry officer,

and acted upon by the disciplinary authority in the present case,

cannot be said to warrant any interference within the framework of

Articles 226 and 227 of the Constitution of India.

09] Coming now to the so-called disproportionate

punishment, it is to be noted that here is a case of an employee,

who was trusted with proper maintenance and issue of stocks and

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thus held an office of confidence and who is guilty of

misappropriation of stock - and not just in one case but in a

number of cases, including cases where receipts were obtained

from recipients for larger quantities as against lesser actual

quantities delivered. It is by all means a serious misconduct, which

undermines the very confidence of the appointing authority and

renders the holder of the office unfit of such confidence. In that

sense, the punishment meted out here, namely, compulsory

retirement, is indeed disproportionate, though such

disproportionateness weighs rather in favour of the petitioner than

the disciplinary authority. There is, accordingly, no merit even in

this submission.

10] There is no infirmity, accordingly, with the appellate

order of the Divisional Commissioner.

11] For the reasons discussed above, there is clearly no

merit in the Writ Petition. Rule is, in the premises, discharged and

the Writ Petition is dismissed. No order as to costs.

JUDGE PBP