State Of Maharashtra & 2 Ors vs Dr.Arjunrao Kashinathji Chopde
2017 Latest Caselaw 4102 Bom

                                1
                                                          wp2379.02.odt

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

                   Writ Petition No.2379 of 2002

   1. The State of Maharashtra,
      through its Secretary,
      Public Health Department,
      Mantralaya,
      Mumbai-400 032.

   2. The Director of Health Services,
      Maharashtra State, 
      Mumbai.

   3. The Deputy Director of Health
      Service,
      Nagpur Circle, Nagpur.                       ... Petitioners


       Versus


  Dr. Arjunrao Kashinathji Chopde,
  C/o Shri Babanrao Varhade Patil,
  Zenda Chowk, Mahal, Nagpur.                      ... Respondent



  Shri V.P. Maldhure, Assistant Government Pleader for Petitioners.
  Shri V.P. Marpakwar, Advocate for Respondent.


                Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.

th Dated : 6 July, 2017

wp2379.02.odt

Oral Judgment (Per R.K. Deshpande, J.) :

1. The respondent-Dr. Arjunrao Kashinathji Chopde was

appointed on ad hoc basis as Medical Officer, Class II, with effect

from 20-8-1972. While in service as such, he was served with the

charge-sheet dated 22-6-1988 proposing to conduct an enquiry

against him in respect of certain charges, including one of

misappropriation of amount. The respondent was suspended on

21-7-1988. The Enquiry Officer held the respondent guilty of the

charges in his report dated 23-8-1989. The respondent was,

therefore, dismissed from service by an order dated 5-7-1991.

2. The respondent filed T.A. No.715 of 1992 challenging

the notice of dismissal dated 16-2-1985, and O.A. No.719 of

1991 challenging the order of dismissal dated 5-7-1991. Both

these applications were decided by the Maharashtra

Administrative Tribunal, Nagpur, by its common order

dated 5-9-2001, and the operative part thereof, is reproduced

below :

wp2379.02.odt

" The O.A. No.719/1991, is hereby partly allowed. The report of the Enquiry Officer, dtd. 23-8-1989, is hereby quashed and set aside. The respondents are hereby directed :-

a) If they so desire to restart the enquiry from the stage of evidence on the basis of the charge framed against the applicant;

b) The Respondents are further directed to supply the copies of all the documents to the applicant on which the reliance was placed;

c) The respondents are further directed to permit the applicant to engage the counsel in his defence.

The O.A. No.715/1992, is hereby dismissed. The Interim Order dated 20-3-1985 is hereby vacated. No order as to costs."

It is the department of the State Government which is before

this Court challenging the aforesaid order.

3. With the assistance of the learned Assistant Government

Pleader appearing for the petitioners, we have gone through the

order passed by the Tribunal, and on 29-6-2017, this Court

passed the order as under :

wp2379.02.odt

" None for the respondent.

Shri V.P. Maldhure, the learned Assistant Government Pleader appears for the petitioner.

We have gone through the judgment and order passed by the Maharashtra Administrative Tribunal, which is impugned in this petition. The Tribunal has set aside the order of termination passed by the petitioner after holding an enquiry, in which the respondent was found guilty of the charge of misappropriation. The Tribunal, without going into the merits of the grounds of challenges raised to the conduction of enquiry, has set aside the termination on the sole ground that the respondent was not supplied with the copy of enquiry report along with the second show cause notice. It has permitted the petitioner to conduct the fresh enquiry by granting the respondent to engage a counsel in the enquiry to represent him.

The learned AGP to take appropriate instructions in the matter as to whether the petitioner wanted to proceed in this matter or would like to have only clarification that the enquiry shall be re-started from the stage of issuance of second show cause notice.

Put up the matter on 6-7-2017."

The learned Assistant Government Pleader is unable to obtain

any instructions from the petitioners. We, therefore, proceed to

decide the matter on its own merits.

wp2379.02.odt

4. After going through the order passed by the

Maharashtra Administrative Tribunal, we find certain

admissions recorded in para 5 thereof, which is reproduced

below :

"5. There was no dispute from the respondents that, the copy of the report of the enquiry officer dtd.23-8-1989 was not supplied to the applicant on the only ground that, he was an ad hoc employee and was not entitled to it. The respondents, further admitted that, the copies of the documents on which the reliance was placed by them were not supplied to the applicant. They also admitted that, no orders were passed on the application of the applicant to permit him to engage the counsel."

In para 7, the arguments advanced on behalf of the

petitioner-Department are reproduced as under :

"7. In reply to this argument, Mr. Warjurkar, the learned P.O. Submitted that, the applicant was an ad hoc employee and it was, therefore, not at all necessary to provide him the copy of the Enquiry Report. Mr. Warjurkar, further submitted that, the applicant was permitted to inspect and to take out the copies of documents as stated in Return dtd. 17-9-1992. In view of such matter, Mr. Warjurkar submitted that, the enquiry against the applicant was quite legal. He, therefore, submitted to dismiss both the petitions."

wp2379.02.odt

In para 8, the Tribunal records the finding as under :

"8. First of all there would be a question as to whether the applicant was entitled to receive the copies of all the documents on which the reliance was placed by the respondents. When the regular enquiry was held against the applicant, it was his vested right to get the copies of all the documents, which are relied by the department in the enquiry. The non-supply of the copies, therefore, would certainly vitiate the enquiry report. Equally, there being a serious charge of the mis-appropriation of the Govt. money and the property. The applicant further was entitled for permission to engage the counsel. Admittedly, no orders were passed by the Enquiry Officer on his such application. The Enquiry Report, therefore would be vitiated on this ground also."

In para 9 of the order, the Tribunal observes that without going

into the merits of the matter as to whether or not there was an

evidence to support to the conclusion of the Enquiry Officer

holding him guilty, it proceeds to deal with the contentions of

non-supply of the copy of the enquiry report. The Tribunal

holds ultimately that the respondent, though a temporary

employee, was entitled to get the protection under

wp2379.02.odt

Article 311(2) of the Constitution of India. It also directed

supply of copies of all the documents relied upon by the

petitioner-Department and engagement of counsel to defend the

matter.

5. After going through the averments made and the

grounds of challenges raised in this petition, we do not find any

ground regarding non-supply of the copies of documents relied

upon by the Enquiry Officer, except a bald statement that all the

copies of the documents were supplied. We are not called upon

to examine the enquiry report to find out the documents on the

basis of which, the respondent was held guilty of all the charges.

The Tribunal has recorded the findings of fact in respect of

non-supply of the documents relied upon by the Enquiry Officer.

There is no ground of challenge that the documents demanded

were irrelevant nor there is any statement that non-supply of

such documents has not caused any prejudice to the respondent.

6. Shri Marpakwar, the learned counsel appearing for the

wp2379.02.odt

respondent, concedes to the fact that as per Rule 8(8) of the

Maharashtra Civil Services (Discipline and Appeal) Rules, 1979,

the employee can be permitted to defend through his next

friend, who can be a Government servant, and hence the order

passed by the Tribunal will have to be modified to that extent.

7. In view of above, the order dated 5-9-2001 passed by

the Maharashtra Administrative Tribunal, Nagpur in O.A.

No.719 of 1991 and T.A. No.715 of 1992 is modified and in

place of the counsel to be engaged in defence by the respondent,

the respondent shall be permitted to defend through his next

friend, who can be a Government servant.

8. Except the aforesaid modification, we do not find any

substance in this petition. The same is dismissed. Rule stands

discharged. No order as to costs.

                  JUDGE.                             JUDGE.

   Lanjewar