Shri Dhanraj Punaji Chavan vs The State Of Maharashtra & Ors
2017 Latest Caselaw 6512 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                           WRIT PETITION No. 2700 of 2006

Shri Dhanraj Punaji Chavan                                                ... Petitioner
      Versus
The State of Maharashtra & Ors.                                           ... Respondents
                                               ...

Mr. N. V. Bandiwadekar a/w Mr. M. G. Bagkar for the Petitioner. 
Mr. C. P. Yadav, AGP for the State.

                                    CORAM   :  S. C. DHARMADHIKARI &
                                               SMT. VIBHA KANKANWADI, J. J.


DATE ON WHICH THE JUDGMENT IS RESERVED: 11.08.2017
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 24.08.2017


JUDGMENT (PER: SMT. VIBHA KANKANWADI, J)

1. The Petitioner challenges the Judgment and order dated

29.11.2005 passed by the Maharashtra Administrative Tribunal,

Mumbai Bench in Transfer Application No. 7 of 2001 (Writ Petition No.

2738 of 1990) by invoking the powers of this Court under Articles 226

and 227 of the Constitution of India.

2. The brief facts giving rise to the Petition are that the

Petitioner joined the Police Training Course at Nashik for the post of

P.S.I. on 01.10.1975. He successfully completed the said training course

and was given posting on 01.01.1977. It is contended that it was in a

permanent, clear and substantive vacancy. He has completed the

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probation period of one year on 30.06.1978. Therefore, it was

necessary for the Respondent to pass an order of absorption of the

Petitioner to the post of P.S.I. w. e. f. 01.07.1979. He was placed at

Pishor Police Station, District Aurangabad under Vaijapur Sub-Division.

A criminal case came to be filed against the Petitioner for the offence

punishable under Sections 323, 161 of the Indian Penal Code read with

Section 5(1)(d)(ii) of the Prevention of Corruption Act on 10.06.1978.

The S.D.P.O, Vaijapur Division conducted the investigation into the

alleged offence. The Petitioner came to be placed under suspension by

an order dated 12.06.1978 passed by the Superintendent of Police,

Aurangabad. However, thereafter the Superintendent of Police took a

decision to send "A-Final Report" in respect of the aforesaid criminal

case by an order dated 15.11.1978. The order of suspension came to be

withdrawn and Petitioner was reinstated with further direction that the

suspension period undergone by him shall be treated as leave due to the

Petitioner. Thus, he was reinstated in the service without imposing any

major or minor penalty. However, all of sudden by order dated

23.11.1978, the Superintendent of Police, Aurangabad imposed upon

him minor punishment of "reprimand" in respect of C.R. No. 1 of 1978

under Section 141 of Criminal Procedure Code on the allegation that

the Petitioner had adopted illegal procedure during the inquiry in

respect of the offence. Thereafter, Respondent No.4 had issued an order

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on 13.12.1978 and fixed the pay of the Petitioner as on 15.11.1978 in

the pay scale of Rs.365-15-500-20-680-Extn-20-760/-. He had

submitted his Assessment Report, as per the prevalent practice at that

time to S.D.P.O, Vaijapur, but no action was taken on the said report

and the order regarding absorption of the Petitioner for the post of P.S.I.

was not issued. The Respondent No.5 had thereafter, issued an order to

initiate departmental enquiry against the Petitioner on 25.06.1980 for

his alleged default when he was working in Aurangabad District. An

inquiry was held and Respondent No.4 issued an order on 11.05.1982

and cancelled earlier order of reprimand dated 23.11.1978 on the

ground that full fledged departmental enquiry is ordered against the

Petitioner for that alleged misconduct. In fact, the Petitioner was

already punished with penalty of reprimand and the Respondent No.4

had no jurisdiction or authority to cancel the punishment and initiate

fresh departmental enquiry. The Petitioner's first statement was

recorded on 31.08.1981 and ultimately, the Enquiry Officer viz.

Respondent No.4 by report dated 31.05.1983 recommended that the

Petitioner's pay may be reduced by Rs.30/- per month for a period of

two years; since according to the Inquiry Officer, out of the three

charges levelled against the Petitioner, two were partly proved and the

charge No.3 was not at all proved. The said order of punishment was

passed by the Respondent No.4 on 27 th/29th July 1983. The Petitioner

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preferred a Departmental Appeal before D.I.G.P, Aurangabad on

27.09.1983 and he had also made an Application dated 15.10.1983

requesting the Respondent No.5 for the review his order of punishment.

The Respondent No.5 stayed the recovery @ Rs.30/- per month from

the salary of the Petitioner till the finalization of the Appeal, on his

application for stay. The Respondent No.5 submitted a report regarding

working of the Petitioner as probationer to DIG, Aurangabad as required

under Rule 126 (10) of the Bombay Police Manual Vol-I. Respondent

No.5 gave memo on 27.01.1985 and directed the Petitioner to attend

his office on 03.05.1985 along with information of the work done by

him during the period from 07.03.1979 to 31.12.1984. Petitioner had

accordingly submitted the necessary information. Again, by letter dated

11.09.1985 further information was called from him for the period from

07.03.1979 to 11.09.1985. This request was also complied with by the

Petitioner but no decision was taken regarding his absorption in the post

of PSI.

3. The D.I.G.P., Aurangabad Range allowed the Petitioner's

Appeal by order dated 31.12.1986 and quashed the order of punishment

passed by the Respondent No. 4 on 29.07.1983. However, at the same

time, he had imposed minor punishment of fine of Rs.365/- inspite of

holding that the Respondent No. 4 had no jurisdiction to pass the order

of penalty of reduction in pay which was less than Minimum Pay drawn

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by the Petitioner. The service record of the Petitioner was not suitably

amended, even after passing the said order. He was all along been

treated as regular P.S.I. and was sent on training to Special Branch by

order dated 27.04.1987. The Gradation List of Unarmed Police

Inspectors in the State of Maharashtra was prepared on 01.04.1987 and

the name of the Petitioner was shown at No.1313 and it has also been

shown that he has been appointed as P.S.I. on 01.07.1977. Inspite of all

these events the order of absorption was not passed. He has been

deprived of his valuable service benefits. Therefore, he made a

representation to the Respondent No.1 on 30.05.1988. A copy of the

same was sent to the Respondent No.2, Respondent No. 5 and D.I.G.P. -

Aurangabad Range, but no action was taken. Increments have been

granted to the Petitioner by order dated 25.07.1989 by the Respondent

No. 5. However, no credit is given for the service rendered by the

Petitioner as P.S.I. from 01.07.1978 to 20.07.1983. Revised pay scale

was granted on the basis of order dated 27.03.1989. It was stated in

this order that date of the Petitioner's increment is stepped up equal to

his Junior P.S.I. S. B. Mane. There were strong recommendations to

treat the Petitioner as P.S.I. w. e. f 01.01.1979. Petitioner filed Writ

Petition No. 2738/1990 praying for his entitlement for being absorbed

as a regular P.S.I. from 01.07.1978 with all service benefits, when the

order was not passed. After the establishment of Maharashtra

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Administrative Tribunal Mumbai, the said Writ Petition No.2738/1990

was transferred to the Tribunal and it was numbered as Transfer

Application No.7 of 2001. Reply was filed by the Respondent Nos. 2 to

4 in the said writ petition. After considering the rival pleadings and

submissions the Tribunal has dismissed the said petition Transfer

Application on 29.11.2005. The present Writ Petition challenges the

said order passed by the Tribunal.

4. Heard the learned counsel for the Petitioner and the

learned AGP for the Respondent Nos. 1 to 5.

5. It has been vehemently argued on behalf of the Petitioner

that most of the facts are not in dispute. The Petitioner was appointed

as P.S.I. on 01.10.1975. He has successfully completed the training and

thereafter, he was serving as probationary P.S.I. During that period an

offence was registered against him, he was suspended. The probation

period ought to have been held to be completed on 30.07.1978 but

prior to that the criminal case was filed against him on 10.06.1978 and

he was put under suspension. "A" summary was filed on 15.11.1978.

The order of suspension was later on revoked. Only minor penalty was

imposed on him by order dated 23.11.1978. The appeal was allowed.

However, penalty of Rs.365/- was imposed on him. Therefore, even if

for the sake of argument the facts are admitted the probation period

should have been treated as extended at the most by 6 months. Yet no

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orders have been passed. Ultimately, the Petitioner was required to

make a representation and it was decided after many years.

6. It has been further submitted that the Tribunal went wrong

in observing that as no positive record was coming forward in respect of

extension of the probation period; but taking into consideration that at

least on two occasions the Applicant was involved in criminal cases for

which he was suspended and thereafter in the Departmental Enquiry a

fine was imposed, it cannot be presumed that the Applicant would have

been absorbed from 01.07.1978. Further, the Tribunal went wrong in

holding that though the actual order of absorption of the Applicant as

PSI from 31.07.1983 is not coming forth and the Respondents were not

in a position to produce that order before the Tribunal, the presumption

that has been drawn in view of fixation of pay is correct. Even though

the Petitioner was held to be involved in criminal case and in the

Departmental Enquiry fine was imposed; yet on both the occasions "A"

summary has been filed after the proper investigation. Therefore, the

Tribunal ought to have presumed that service record of the Petitioner is

clean and therefore, the prayer of the Petitioner ought to have been

allowed.

7. It has been submitted on behalf of the Respondents that the

Petitioner himself is accepting the fact that on two occasions he was

held to be involved in a criminal case. The first was in respect of an

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offence punishable under Section 323, 161 of the Indian Penal Code

read with Section 5 (1) (d) (ii) of the Prevention of Corruption Act and

the second one was under Section 392 of IPC. Therefore, this fact

shows that his record was not at all clean. Even though "A" summary

has been filed, yet in the Departmental Enquiry he has been held to be

guilty and therefore, the fine has been imposed though it may be of

minor nature. The contents of the affidavit filed on behalf of the

Respondents show that how the record of the Petitioner was not clean

and therefore, the order of absorption was not passed immediately after

the probation period was over. Not passing a specific order regarding

extension of probation does not entitle him to claim any relief and

therefore, the observations made by the Tribunal are correct and legal.

The petition of the Petitioner has been rightly dismissed by the Tribunal.

8. As aforesaid the facts of the case are not much in dispute

and therefore, they are not reproduced again. The Petitioner was

involved in the crime that of under the Prevention of Corruption Act

during the period of probation and therefore, he was suspended.

Though "A" summary has been filed yet the Departmental Enquiry was

conducted. Initially, the punishment of deduction of Rs.30/- per month

from the salary of the Petitioner was imposed which was to last for two

years from the date of the order. In the appeal, though the said order

was set aside, yet penalty was imposed on the Petitioner to the extent of

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Rs.365/- that means clean chit was not given to him.

9. Thereafter, though the Petitioner continued to work as PSI,

he was later on involved in another crime in C.R. No. 82 of 1981 under

Section 392 of Indian Penal Code registered with Naldurg Police Station

(Dist. Osmanabad). The "A" summary was produced on 02.11.1982. It

was specifically contended in the affidavit-in-reply on behalf of the 2nd

Respondent that normally the orders of extension of probation period

were issued before the expiry of probation period and in the case of the

Petitioner also it could have been adhered too. However, because of the

gap of time the original record with the then Deputy Inspector General

of Police, Aurangabad Range was not traceable or it was abolished.

Even there was attempt to get the copies of the said record regarding

the probation period of the Petitioner from the Government. However,

the Government also intimated that the record was not traceable. The

Tribunal has therefore, rightly observed that the contention of the

Respondents will have to be presumed to be true. A presumption can be

easily drawn in favour of the Government or the Government Officers in

respect of official correspondence to have been bonafidely made. In

other words it can be presumed that as a normal rule in this case also

there would have been correspondence in respect of extension of

probationary period. Merely because the record is not available, the

Petitioner cannot be given advantage of the same. It is also to be noted

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that the Petitioner had allowed nearly 11 years to elapse. He had not

made any such representation on the earlier occasion i. e. immediately

after the expiry of the probation period i.e. 01.07.1978 nor even after

the "A" summary was filed in respect of the first offence. This inaction

on the part of the Petitioner speaks for itself and he cannot derive any

advantage because of his inaction. Further, it can also be seen that the

Petitioner had availed 163 days leave vide on probation i. e. w.e.f.

05.07.1978 to 14.11.1978 and in the mean time he was placed under

suspension with effect from 12.06.1978. Though the said period under

suspension was later on held to be period of leave, the natural effect of

the same would be the extension of probation. The Tribunal was

justified in holding that the probation period of the Petitioner was

extended from 30.06.1978 to 31.07.1983 on the basis of the material

that was placed. The service record of the Petitioner was not clean.

Though the Petitioner contends that there were strong

recommendations, yet no presumption can be drawn that on the basis of

any recommendation, the authority who was deciding whether to hold

the probation as completed or not was influenced by the same. The

Petitioner's undergoing "Refreshers Course" and Special Course or

training was part of his job and therefore that fact alone cannot be a key

factor to hold the successful completion of his probation period. There

is no merit in the contentions of the Petitioner because he has not

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impugned or challenged the actions of the Respondents in not treating

him as a permanent or confirmed employee or member of the police

force even though he allegedly completed the probationary period

successfully. He questioned these acts only after his fixation of pay by

filing a petition on 11th April 1990. Hence, his understanding and

interpretation of the Respondents' acts and orders will not be decisive

which is the precise conclusion reached by the Tribunal on facts. That is

not perverse so as to call for interference in our extra-ordinary so also

supervisory Jurisdiction. Our jurisdiction is discretionary and equitable.

10. We do not find any perversity or illegality in the judgment

and order passed by the Tribunal. We do not find any merit in the

present petition. Hence, we proceed to pass following order:-

ORDER The Writ Petition is hereby dismissed with no order as to costs.

(SMT. VIBHA KANKANWADI, J.) (S. C. DHARMADHIKARI, J.)