Bhimraj S/O Kusan Kotangale vs The State Of Maharashtra Through ...
2017 Latest Caselaw 3855 Bom

WP  463/15                                             1                              Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                        WRIT PETITION No. 463/2015
Bhimraj S/o Kusan Kotangale,
Aged about 66 years, Occ-Retired,
R/o Plot No.702, Ahuja Nagar, Bhim
Chowk, Nara Road, Jaripatka,
Nagpur-440 014.                                                                 PETITIONER

                                     .....VERSUS.....

1.    The State of Maharashtra,
      through its Secretary,
      Tribal Development Department,
      Mantralaya, Mumbai - 400 032.
2.    The Additional Tribal Commissioner,
      Tribal Development Department, Nagpur,
      Tahsil and District Nagpur.
3.    The Tribal Commissioner,
      Tribal Development Department,
      Maharashtra State, Nashik-2.                                                  RESPONDENTS


                     Shri V.S. Dhobe, counsel for the petitioner.
      Mrs. M.Naik, Assistant Government Pleader for the respondent nos.1 to 3.


                                       CORAM :SMT.VASANTI  A  NAIK AND
                                                      A.D. UPADHYE, JJ.                  

                                                                     ST
                                                                                 JULY,       2017.

ORAL JUDGMENT (PER : SMT.VASANTI  A  NAIK, J.)

By this writ petition, the petitioner challenges the order of the

Maharashtra Administrative Tribunal, dated 26.08.2014, dismissing the

original application filed by the petitioner.

2. The petitioner was appointed as a secondary school teacher in

Government Ashram School on 03.07.1981. In May-1990, the petitioner

was promoted as a Headmaster. The petitioner was posted at Ashram

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School, Hardoli on 30.07.1998 and worked in the said school till

29.09.2001. A complaint was lodged by a tribal girl student, Ku.Asha

Kawarati, who was studying in Standard X of the Ashram School against

the petitioner. A team of officers from the Tribal Development

Department conducted an inspection and found that there was some truth

in the complaint made by Ku.Asha Kawarati. A preliminary enquiry was

conducted in the matter and the petitioner was placed under suspension

in view of the provisions of the Maharashtra Civil Services (Discipline and

Appeal) Rules on 29.09.2001. The charges levelled against the petitioner

were that on 15.09.2001 and 16.09.2001, when Smt.Mankar, the primary

teacher, had gone to Chandrapur and her husband was in the house, a

girl student named Ku.Sangita Bhandari stayed in the house of

Smt.Mankar and this fact was not brought to the notice of the superior

authorities by the petitioner. As per the other charge, the petitioner used

to attend the additional classes in an intoxicated state and used to abuse

the employees and girl students in filthy language. According to the third

charge, despite having the knowledge that it was not permissible for him

to get the household work done from the tribal girl students studying in

the Ashram School, the petitioner was getting the household work done

from them. After serving of the charge-sheet on the petitioner and

conducting an enquiry against him on the three charges that were levelled

against him, the petitioner was reverted from the post of Headmaster to

the post of Assistant Teacher. The petitioner challenged the said order in

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a departmental appeal. The appeal was, however, dismissed. The

petitioner then challenged the order of his reversion before the

Maharashtra Administrative Tribunal. The Maharashtra Administrative

Tribunal, by the impugned order dated 26.08.2014, dismissed the original

application filed by the petitioner. The petitioner has challenged the

order of the Tribunal in this writ petition.

3. Shri Dhobe, the learned counsel for the petitioner, submitted

that the Tribunal was not justified in dismissing the original application

filed by the petitioner. It is submitted that it is apparent from a reading

of the preliminary enquiry report that the complainant Ku.Asha Kawarati

had not made any statement in support of her complaint. It is submitted

that two witnesses had not supported the case of the respondents. It is

submitted that though only two charges levelled against the petitioner

were proved, the Tribunal has wrongly recorded that two charges were

fully proved and one charge was partially proved. It is submitted, by

taking this Court through the evidence of the witnesses examined on

behalf of the respondents, that the petitioner was victimized. It is

submitted that since some of the employees had a grudge against the

petitioner, a false complaint was lodged against him and he was made a

scapegoat. It is submitted that though the counsel for the petitioner had

not argued on the proportionality of the punishment inflicted upon the

petitioner, the Tribunal has unnecessarily touched the said point and has

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held that the punishment imposed upon the petitioner is not

disproportionate to the act of misconduct proved against him. It is

submitted that the judgments relied on by the Tribunal do not support the

case of the respondents. It is submitted that since none of the witnesses

supported the case of the respondents, it is a case of no evidence. It is

submitted during the tenure of the petitioner as a Headmaster in the

Ashram School at Hardoli from 30.07.1998 to 29.09.2001, there was no

complaint against him.

4. Mrs. Naik, the learned Assistant Government Pleader

appearing on behalf of the respondents, has supported the order of the

Tribunal. It is submitted that the charges levelled against the petitioner

were grave and serious and the same have been proved against him. It is

submitted that only the charge that the petitioner used to take additional

classes in the intoxicated state and used to abuse the employees and the

girl students is not fully proved. It is submitted that the two other

charges which are very grave and serious have been fully proved. It is

submitted that since the charges levelled against the petitioner were duly

proved, the Tribunal has rightly held on an appreciation of the material

on record that it was not a case of no evidence and merely because a

couple of witnesses did not support the case of the respondents, it cannot

be said that the charges levelled against the petitioner were not proved.

It is submitted that the Tribunal rightly considered the well settled

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position of law that the Tribunal cannot sit in appeal over the findings

recorded by the enquiry officer while dismissing the original application

filed by the petitioner. It is submitted that considering the nature and the

gravity of the charges, the petitioner was rightly reverted to the post of

Assistant Teacher. The learned Assistant Government Pleader sought for

the dismissal of the writ petition.

5. On hearing the learned counsel for the parties and on a

perusal of the enquiry report as also the impugned order, it appears that

there is no scope for interference with the impugned order in exercise of

the writ jurisdiction. Three serious charges were levelled against the

petitioner, one that a girl student studying in the Ashram School stayed in

the house of one teacher Smt.Mankar for two nights though she was out

of station and her husband was in the house, the petitioner did not report

this incident to his superiors. The other charge against the petitioner was

that the petitioner used to get the household duties done from the tribal

girl students who were studying in the Ashram School. Both these

charges levelled against the petitioner are duly proved. The third charge

that the petitioner always attended the additional classes in an

intoxicated state and abused the girl students and the employees in filthy

language is not fully proved against the petitioner. We have perused the

enquiry report. The Tribunal had also perused the same. The Tribunal

found that though two of the witnesses examined on behalf of the

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respondents did not support the case of the respondents, the evidence of

the lady superintendent Mrs.Parate and Komal Bhalavi, a girl student

studying in the Standard X clearly spoke in support of the charges. The

Tribunal, therefore, rightly held that since the enquiry officer believed the

evidence of the witnesses that supported the case of the respondents, it

was not for the Tribunal to take another view in the matter merely

because some other witnesses had not spoken in support of the charges.

In the circumstances of the case, it was rightly held by the Tribunal that it

was not a case of no evidence. In our view, the Tribunal was justified in

holding so as on a perusal of the statements - evidence of the witnesses

examined on behalf of the respondents, it appears that though a couple of

witnesses did not speak in support of the charges, other witnesses spoke

in support of the same. The Tribunal rightly held that it is a usual

phenomenon in the cases of departmental enquiries and trials that some

of the witnesses do not support the charges at the time of the enquiry or

trial. The view expressed by the Tribunal is not only a possible view but,

a reasonable view. We do not find any merit in the submission made on

behalf of the petitioner that there was no complaint against the petitioner

during the three years of his service at Hardoli. In fact, a complaint was

made against the petitioner when he was at Hardoli and the inspection

was also carried out by the officers of the Social Welfare Department

while the petitioner was posted at Hardoli. It appears from the record

that during inspection several girl students gave statements against the

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petitioner and, hence, the enquiry was conducted. Though the learned

counsel for the petitioner has not specifically argued this point, we

endorse the finding recorded by the Tribunal that the punishment

inflicted upon the petitioner is not disproportionate to the act of

misconduct committed by the petitioner. The misconduct proved against

the petitioner is grave and serious and, hence, it cannot be said that the

punishment inflicted upon the petitioner is very harsh or

disproportionate.

6. Since the order of the Tribunal is just and proper, the writ

petition is dismissed with no order as to costs. Rule stands discharged.

              JUDGE                                           JUDGE
APTE