Arvind Manikrao Naik (Dead) ... vs The Vice Chairman And Managing ...
2017 Latest Caselaw 4513 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                NAGPUR BENCH : NAGPUR.

                                          Writ Petition No.3077 of 2004

              Arvind Manikrao Naik,                                           (Dead)
              Aged about 48 years, Occ.- Nil,
              R/o.-149, Surendra Nagpur, Nagpur.

              (L.Rs. of petitioner)

              1]         Smt. Vrishali wd/o Arvind Naik,                (Amendment carried out
                         Aged about 54 years, Occ.-Housewife,         as per Court's order 
                                                                                                dated 24-08-2012)

              2]       Ankur Arvind Naik,
                       Aged about 23 years, Occ.-Student,
                       Both R/o. Plot No.4, Flat No.101, 1st Floor, 
                       Gandhar Apartments, Surendra Nagar, Nagpur. 

              (Amendment carried out as per Court's order 
               dated 02-08-2013)

              1]       Smt. Vrishali wd/o Arvind Naik, 
                       Aged about 55 years, Occ.-Housewife, 

              2]       Ankur Arvind Naik,
                       Aged about 24 years, Occ.-Students,
                       Both R/o. Plot No.4, Flat No.101, 1st Floor, 
                       Gandhar Apartment, Surendra Nagar, 
                       Nagpur.                                                               .... Petitioners.

                                                          -Versus-




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              1]       The Vice-Chairman and Managing Director, 
                       Maharashtra State Road Transport Corporation, 
                       S.T. Central Office, Maharashtra Vahtuk Bhavan, 
                       Dr. Anandrao Nair Marg, Mumbai-8.

              2]       The Assistant Chief Accounts Officer (Enquiry Officer),
                       State Transport Office, Mumbai-8.

              3]       The Assistant Accounts Officer,
                       Central Training Institute, Bhosari, Pune.

              4]          The Sr. Security and Vigilance Officer, 
                          State Transport, S.T. Regional Office, 
                          Ganeshpeth, Nagpur.                                      .... Respondents.
               -----------------------------------------------------------------------------------
               Shri  A.K. Choube, Counsel for petitioner.
               Shri  S.C. Mehadia,  Counsel for respondent no.4.
               -----------------------------------------------------------------------------------
               Coram : R. K. Deshpande & 
                             Mrs. Swapna Joshi, JJ.

               Dated  : 14    July, 2017
                              th 
                                           

              ORAL JUDGMENT (Per R. K. Deshpande, J.)

The challenge in this petition is to the order of dismissal dated

25-06-2002 passed by the Vice-Chairman and Managing Director of

Maharashtra State Road Transport Corporation. The petitioner

working as a Senior Accounts Officer, Central Workshop at

Aurangabad was dismissed with effect from 25-06-2002 on the

charges of dishonesty and is held not entitled to any gratuity. The

period of suspension is treated as leave to the extent of the leave in

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balance of the petitioner. The petitioner expired during the pendency

of the petition on 17-07-2012 and his legal heirs are brought on

record.

2] The petitioner was employed as an 'Assistant Accounts

Officer' in the service of the Maharashtra State Road Transport

Corporation in the year 1981 and subsequently he was selected in the

direct cadre in 1987 as an 'Accounts Officer'. In the year 2001, he

was promoted as 'Senior Accounts Officer'.

3] While the petitioner was working at Central Workshop at

Nagpur, during August, 1998 to May, 2001, it is alleged that, he had

committed certain acts of misconduct and accordingly on

24-10-2001, he received a charge-sheet dated 01-11-2001 alleging

certain acts of misconduct. The petitioner submitted his reply to the

charge-sheet on 21-11-2001. On 18-05-2002, the Enquiry Officer

submitted the Report, on the basis of which the show cause notice

was issued to the petitioner on 31-05-2002. The order of dismissal

was passed on 25-06-2002, holding the petitioner guilty of the acts

of misconduct held to be proved against him.

4] Though the charge-sheet issued to the petitioner does not

indicate specific independent charges levelled against him, the

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Enquiry Officer has on the basis of the allegations in the show cause

notice prepared eight charges of misconduct levelled. We have gone

through all these charges. The sum and substance of all these

charges is that the petitioner submitted false National Saving

Certificates, false challans, false receipts and made false claim for

accrued interest to get the benefit of rebate of income tax. It is not

in dispute that the Department of Income Tax verified the return and

raised certain demands against the petitioner. The petitioner filed

revised return and has complied with the requirement of the Income

Tax Department. The petitioner is held guilty of the acts of

misconduct enumerated under Sections 9, 10, 12(b), 22 and 48 of the

Acts of Misconduct in Schedule 'A' of the Discipline and Appeal

Procedure of the Maharashtra State Road Transport Corporation.

5] The provisions of Sections 9, 10, 12(b), 22 and 48 under

Schedule 'A' are reproduced below :-

"9. Willful insubordination or disobedience, whether individually or jointly, of any lawful and reasonable order (s) of superior.

10. Indiscipline.

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12(b). Fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation.

22. Breach of any administrative orders.

48. Falsification, tampering with or destroying any paper, record or property of the Corporation."

The Enquiry Officer holds the petitioner guilty of charges

1 to 8 framed against him and according to him the charges proved

constituted the acts of misconduct enumerated under Sections 9, 10,

12(b), 22 and 48 of the Discipline and Appeal Procedure of the

Maharashtra State Road Transport Corporation, which are

reproduced above. The petitioner was dismissed from service with

effect from 25-06-2002. The period of suspension of 235 days was

treated as leave to the extent it was in balance in the account of the

petitioner. The petitioner is held not entitled to the benefits of any

gratuity.

6] Shri Amit Choube, the learned Counsel appearing for the

petitioner has urged that even if it is admitted that all the charges are

proved against the petitioner, the same would not constitute any acts

of misconduct enumerated in Schedule 'A' much less those under

Sections 9, 10, 12(b), 22 and 48. He, therefore, submits that no

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punishment could have been imposed upon the petitioner much less

of dismissal from service, there being no loss caused to the

Corporation. As against this, Shri Mehadia, the learned Counsel

appearing for the respondent Corporation submits that the acts

alleged and proved clearly fall within the ambit of Sections 12(b) and

48 of the Acts of Misconducts under Schedule 'A'.

7] We, therefore, restrict the judicial scrutiny to the acts of

misconduct under Sections 12(b) and 48 of the Schedule 'A' of the

Discipline and Appeal Procedure of the Maharashtra State Road

Transport Corporation.

8] To commit fraud, dishonesty or misappropriation in

connection with the business or the property of the Corporation, is

an act of misconduct under Section 12(b). It is not the charge that

the acts of misconduct alleged against the petitioner are in

connection with the business or the property of the Corporation and

it is also not the finding recorded by the Enquiry Officer or the

Disciplinary Authority. It seems that the petitioner is benefitted in

getting the rebate of the income tax from the Income Tax

Department by submitting false National Saving Certificates, false

challan of Rs.22,000/- and false receipts of Rs. 10,001/-. It may also

be a false claim in the accrued interest. At the most, these acts would

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attract offences and penalties under the Income Tax Act. For this, an

action was taken against the petitioner by the Income Tax

Department and the petitioner also submitted the revised return.

9] We fail to understand as to how such act on the part of the

petitioner is in connection with the business or the property of the

Corporation. It is not the case that something has been recovered

by the Income Tax Department from the State Transport

Corporation, the employer of the petitioner, for the acts of

misconduct committed by the petitioner. The petitioner has not been

held guilty of any such offences under the Income Tax Act. The

dishonesty, fraud or misappropriation, if there is any, we do not find

it to be in connection with the business or the property of the

Corporation. In view of this, we are of the view that the petitioner

could not have been punished for such an act of misconduct, which

is not covered by the Act of Misconduct alleged under Section 12(b)

of Schedule 'A'.

10] The falsification, tampering with or destroying any paper,

record or the property of the Corporation, constitutes an act of

misconduct under Section 48 of the Schedule 'A'. It is not the

charge levelled against the petitioner that he has tampered with or

destroyed any paper, record or property of the Corporation. If the

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petitioner has made a false claim to the Department of Income Tax

for taking rebate for himself, that would not be covered by

Section 48. Shri Mehadia, the learned Counsel appearing for the

respondent Corporation could not point out to us even a single

instance of tampering with or destroying any of the documents or

record of the Corporation by the petitioner. In view of this, the

petitioner could not have been held guilty of the act of misconduct

under Section 48 under Schedule 'A' of the Acts of Misconducts.

11] For the reasons above, we cannot sustain the order of

dismissal of the petitioner from service passed on 25-06-2002. The

same will have to be quashed and set aside and the petitioner would

be entitled to all the consequential benefits including regularizing his

period of suspension, the payment of back wages and all terminal

benefits from the date he attained the age of superannuation, as the

date of his death is subsequent to it.

12] In the result, the Writ Petition is allowed. The order dated

25-06-2002 passed by the respondent dismissing the petitioner from

service is hereby quashed and set aside. The petitioner shall stand

notionally reinstated in service with effect from the date of his

dismissal from service. The petitioner would be entitled to all the

consequential benefits. However, the payment of back wages is

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restricted to 50% from the date of termination till the date of his

attaining the age of superannuation. All other terminal benefits shall

be released to the petitioner along with the payment of back wages

within a period of four months from today.

13] Rule is made absolute in above terms. No order as to costs.

                                                 JUDGE                                             JUDGE




                            Deshmukh