Ganpati B.Patil vs The Bombay Electricity Supply & ...
2017 Latest Caselaw 5241 Bom

                                                                                        WP 349.99.doc

Urmila Ingale

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                      WRIT PETITION NO. 349 OF 1999

                 Shri Ganapat Bhimrao Patil
                 Bldg. No. D 30/303, 3rd floor,
                 Golukdham, J. Arunkumar Vaidya
                 Marg, Goregaon ( East),
                 Mumbai 400 063.                                       .. Petitioner

                        Vs.
                 The Bombay Electricity Supply and
                 Transport Undertaking through
                 its General Manger having their
                 office at Electricity House,
                 Colaba, Mumbai 400 001.                             .. Respondent

                 Ms.  Neeta P. Karnik,   for the Petitioner.
                 Mr.S.K.Talsania, Sr. Advocate with Ms.Kavita Anchan i/b M.V. Kini & 
                 Co., for Respondent.


                                                                CORAM : A.A.SAYED AND
                                                                               M.S.KARNIK, JJ.

RESERVED ON : 12th JULY, 2017 PRONOUNCED ON : 31st JULY, 2017

JUDGMENT (PER :

M.S.KARNIK, J.)

. By this Petition under Article 226 of the Constitution of

India, the petitioner is challenging the order dated 16/01/1998

passed by the Disciplinary Authority dismissing him from the services

of the respondent. The petitioner has also challenged the Appellate

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orders passed by the First and Second Appellate Authority dated

25/03/1998 and 04/09/1998 respectively.

2. The petitioner joined the services of the respondent in

1984 as an Assistant Foreman and worked for 12 years in the said

post. The petitioner was promoted as Charge Engineer with the

Erection Department of the respondent undertaking.

3. On receipt of certain information, Shri R.D.Kamble,

Senior Vigilance Officer along with security staff raided the premises

of Dharam Palace Co-operative Housing Society Ltd., 117, Hughes

Road, Mumbai 400 007 at 12.00 hours on 01/12/1996. It was

noticed that Shri Arvind Narayan Poyekar, Deputy Chief Engineer,

Erection (North) Department along with Shri A.L.M. Shaikh Lighter

St. Ltg. Department, Shri T.K. Choudhary, Nowghany, Erection

(North) Department and Shri V.T. Satham (Casual Labourer) were

engaged in carrying electrical work of providing earthing to the new

service laid recently. Further investigation by Shri R.D.Kamble

revealed that Shri Poyekar had undertaken contract work in the

name of Sameet Electricals, Engineers and Contractors at estimated

cost of Rs.1,62,000/-. Requisition No. 402190 dated 13/08/1996

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was then submitted to the commercial department of the respondent

in the name of Surgems, 605, 'Dharam Palace', Nyayamurti Sitaram

Patkar Marg, Mumbai and signed by Shri R.S.Mehta (Partner) as

applicant. The requisition pertaining to this work was accepted for

registration by the Assistant Engineer, Commercial South (s) Shri

E.S.Chowdhary. The test report has the same date as the requisition

by Shri E.S.Chowdhary.

4. Upon submitting the requisition the work was started by

Shri Poyekar on 29/09/1996 by engaging casual labourer, Nowghany

working under him at Sewree chowkey. The work involved

excavation, laying PVC pipes, fixing clamps, providing earthing

plates etc.

5. On 29/09/1996 which was a Sunday and non-working

day, Shri Poyekar accompanied by Mr.Mhaprolkar & Shri Bhagat

visited Sewree chowkey and took a cledge hammer for Dharam

Palace works site without making entry in material out going book.

Thereafter the work was continued till 01/12/1996 when the

premises were raided by the security staff. When Shri Kamble,

Senior Vigilance Officer started the scrutiny of the related official

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record/documents it was observed that the requisition No. 402190

dated 13/08/1996 was handwritten by Shri Poyekar himself. The job

sheets of the casual labourer who had worked at Dharam Palace and

whose official place of work was at Sewree Chowkey were certified

by Shri Poyekar, Deputy Charge Engineer, Shri R.B. Ghate, Sub-

Engineer and Shri C.Sasheendran, Deputy Engineer of Sewree

Chowkey.

6. On scrutiny of the time card of Shri Poyekar it was

noticed that he was marked present by Shri C.Sasheendran from 8.00

hrs. to 17.00 hrs. on 1st, 3rd, 4th October & 1st, 23rd and 30th November

for his work at Sewree chowkey. During the said dates and duty

hours he was found at Dharam Palace site.

7. The scrutiny of the test report No. 16799 dated

13/08/1996 from B.K. Electricals & Engineers, M.G.No. 4905 &

M.S.No. 16277, led to a different line of investigation. The report of

Shri R.D.Kamble states that on scrutiny of the address mentioned in

the test report, it was revealed that the Licence Electrical Contractor

('LEC' for short) Shri P. J. Pawar was not staying at the said address,

but had shifted to Pune long back.

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8. On 23/12/1996 Shri P. J. Pawar LEC, alongwith one

wireman Shri Riyaz Ismail Dimtikar came to the security and

Vigilance Department. Shri Pawar disclosed that he was proprietor of

B.K. Electricals and Engineers and doing his business at Pune. Shri

Ganpati Bhimrao Patil (petitioner herein), Charge Engineer used to

come to his residence at Pune to take xerox copy of the paper of

renewal of the government licence. On the strength of this xerox

copy, the petitioner used to collect T.R. Books from the undertaking

on behalf of B.K. Electricals and Engineers and used the same for his

business. Shri Riyaz disclosed that he used to collect the signed

blank test report from the petitioner and used the same whenever

required. Shri Riyaz further disclosed that he used to pay Rs.300/- to

Rs.400/- for the said test report book to the petitioner and the

petitioner used to give signed blank test report to Shri Riyaz

Dimtikar.

9. On 01/01/1997, the Vigilance Officer recorded a

statement of the petitioner in which he has admitted as having

signed as Shri P. J. Pawar on test report. He further admitted that

other test report books were also collected by him and then handed

over to Shri Riyaz for monetary gains. The petitioner was served

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with charge-sheet dated 13/05/1997. During the course of Inquiry

statement of Shri R.D. Kamble, Senior Vigilance Officer came to be

recorded some time in August 1997. The statement of Shri Riyaz

was also recorded on 24/09/1997. Shri Kamble was duly cross

examined at the instance of the petitioner. The report which was

submitted against the petitioner by Shri R.D. Kamble was based on

the following documentary evidence.

"Shri G.B.Patil, Charge Engineer, Er(N) Ch. No. 211532.

The report submitted against Shri G.B.Patil by Shri R.D.Kamble is based on following documentary evidence.

1. Written Statement of Shri G.B.Patil, dtd. 1.1.97 (C-45).

2. Written Statement of Shri P. J. Pawar (Outsider).

3. Written Statement of Shri Faiyaz (Riyaz) Ismail Dimtimkar (Outsider).

4. Xerox copy of Test Report No. 19209 dtd. 15.3.93 which is issued for Approval delicacies and other blank Test Reports Sr. No.35768 to 35776.

5. The application form for Test Report.

6. Xerox copy from the register of the undertaking showing the receival of test report books.

7. Blank Letter Head of B.K. Electricals & Engineers (C-113).

8. Eight blank test report bearing No. 35768 to 35776 (C-117 to C-131)."

10. The Disciplinary Authority by order dated 16/01/1998

held the charges levelled against the petitioner as proved and took a

serious view of the misconduct committed by the petitioner. The

petitioner came to be dismissed from the services of the undertaking

with effect from 17/01/1998. First and Second Appeals filed by the

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petitioner before the Appellate Authority came to be rejected.

Learned Counsel for the petitioner invited our attention to the

statement of the petitioner recorded by the Vigilance Officer. She

also took us through the relevant portions of the evidence of Shri

Riyaz, Senior Vigilance Officer Shri Kamble and the Disciplinary

Authority's report. According to her, findings recorded by the

Disciplinary Authority are perverse based on no evidence. She

contends that the statement of the petitioner was recorded by the

Senior Vigilance Officer under threat and coercion. The findings of

the Disciplinary Authority holding the petitioner guilty of misconduct

is completely based on the statement of the petitioner made to the

Vigilance Officer. In fact, in her submission, the Vigilance Officer has

himself written the question and answers and obtained signature of

the petitioner in order to falsely implicate him. There is no other

material apart from this to establish the charge. In the submission of

the learned Counsel for the petitioner statement which is in the

nature of confessional statement obtained under threat and coercion

cannot be used against the petitioner.

11. Learned Counsel for the petitioner further submits that

Shri P. J. Pawar was a material witness who has not appeared during

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the enquiry though he was called. According to her, Shri P. J.Pawar

LEC has given a false statement against the petitioner to the Vigilance

Officer only because he bore animosity towards the petitioner. She

submits that Shri Riyaz with a view to escape liability has put the

blame on the petitioner. According to her, Senior Vigilance Officer

Shri Kamble was duly cross examined on the aspect of petitioner's

forcible statement recorded by him. In the submission of the learned

Counsel for the petitioner false story has been cooked up. She has

argued at length contending that appreciation of evidence by the

Disciplinary Authority does not meet standard of proof expected in

disciplinary proceedings. According to her, the evidence in the form

of statement recorded before the Vigilance Officer has to be

discarded. There is no evidence to support the findings of the

Disciplinary Authority.

12. Learned Senior Counsel for the respondent on the other

hand supported the order of dismissal and orders passed by the

Appellate Authority. In his submission, the Disciplinary Authority

considered the entire material on record and then arrived at finding

of fact that charges levelled against the petitioner are proved. In his

submission even the Appellate Authorities have concurrently found

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against the petitioner. He further pointed out that the petitioner's

submission was recorded by the Vigilance Officer on 01/01/1997.

Even that part of the statement which is written by the Vigilance

officer finds signature of the petitioner below the statement. The

charge-sheet was filed on 13/05/1997. It is only in September 1997

during the course of the Inquiry for the first time the petitioner has

alleged that his statement was obtained by coercion. This according

to the learned Counsel is nothing but after an thought. In the

submission of the learned Counsel there is evidence before the

Disciplinary Authority in the form of the petitioner's statement

recorded by the Vigilance Officer in which he has admitted to have

signed as Shri P. J. Pawar LEC on the test report. He has also

admitted to the test report books collected by him and then handed

over to Shri Riyaz for monetary gains. In the submission of the

learned Senior Counsel, Shri R.D. Kamble Senior Vigilance Officer

who recorded the statement was examined during the course of

enquiry and even has been cross examined by the petitioner. To

support his contention that the statement made by the petitioner to

the Vigilance Officer can be relied upon, learned Senior Counsel has

placed reliance on the decisions of the Apex Court reported in Kuldip

Singh Vs. State of Punjab and ors. (1996) 10 Supreme Court

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Cases 659 which was later followed in the case of Commissioner of

Police, New Delhi Vs. Narender Singh (2006) 4 Supreme Court

Cases 265. Learned Senior Counsel has also relied upon the decision

of the Apex Court in the case of State of Haryana and anr. Vs.

Rattan Singh AIR 1977 Supreme Court 1512 to contend that when

there is some evidence which had relevance to the charge against

the delinquent, the employer is well justified in imposing appropriate

punishment on employee.

13. We have considered the rival submissions advanced by

learned Counsel for the parties. Shri P.J. Pawar LEC in his statement

made before the Vigilance Officer - Shri R.D.Kamble has stated that

the petitioner used to go to his residence at Pune to take xerox copy

of paper of renewal of the government licence. In the statement

before the Vigilance Officer, Shri P. J.Pawar stated that he did not

take any test report book from BEST and he has not signed on any

book or any copy after he left Bombay in the year 1989-90. In his

statement, he has further stated that the petitioner never told him

that he used test report book for the work of BEST after he had left

for Pune. It is on the strength of the xerox copy of the licence, the

petitioner used to collect test report books from the undertaking on

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behalf of B.K. Electricals and Engineers of which Shri P. J.Pawar is

the proprietor and used the same for his business. Further Shri Riyaz

the wireman disclosed that he used to collect the signed blank test

report from the petitioner and used the same whenever required. It

is also disclosed by Shri Riyaz that he used to pay Rs.300 to 400/- for

the said test report book to the petitioner and the petitioner gave

signed blank test report to Shri Riyaz. The petitioner in his

statement admitted as having signed as P.J. Pawar on the test report.

14. We find that even the statement of Shri Riyaz recorded

by the Vigilance Officer where he has categorically stated that the

address given of B.K. Electricals and Engineers is that of the shop

which belongs to Riyaz. The letterheads needed for this work bear

the address of his shop and the letterheads were made by the

petitioner. Shri Riyaz has stated these letterheads are used for the

purpose of giving bills to parties or to BEST. The test reports which

were found in the purse were taken from the petitioner with the

signature of Shri P.J.Pawar as per the statement of Riyaz.

15. The Disciplinary Authority took into consideration the

documentary evidence on record. He found that the document at

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serial No. 5 is the application form for the test report books which is

signed by the petitioner as Shri P. J. Pawar. Even the copy of the

register from the BEST undertaking of receipt regarding the test

report books shows that in some of the columns, the same is signed

as Shri P.J. Pawar, in some of the columns as Shri G.B. Patil

(petitioner) and in some of the columns as Shri Riyaz Dimtikar. The

documentary evidence at serial No.8 are blank test reports which are

signed as P. J. Pawar in LEC column and also supervisors column.

Shri R.D. Kamble - Senior Vigilance Officer was duly examined and

he deposed that Shri P.J. Pawar who was the proprietor of the firm

B.K. Electricals & Engineers, had shifted long back to Pune and he

also stated that the petitioner used to go to the residence of Shri P. J.

Pawar for renewal of the licence on the strength of which the

petitioner obtained blank test report books on behalf of B.K.

Electricals and Engineers and sold it to Shri Riyaz after signing as P. J.

Pawar on the blank test report. Shri R.D. Kamble stated that the

statement in fact was given by the petitioner which he recorded. He

also recorded the statement of Shri P. J.Pawar and that of Riyaz

Dimtikar. Shri Riyaz was also examined. Though official letter was

sent to Shri P.J. Pawar at his Pune residence calling him for deposition

before the enquiry, he however did not turn up.

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16. The Disciplinary Authority has observed that in the cross

examination of Shri Riyaz, he admitted that he was introduced to

Shri P.J.Pawar by the petitioner somewhere in the year 1989. The

petitioner used to sell blank but signed test report books to Shri

Riyaz. On the instructions of the petitioner, Shri Riyaz used to obtain

blank report books from undertaking after submitting application

form which was signed by the petitioner as P. J. Pawar. The

Disciplinary Authority has taken into consideration the evidence on

record which shows that 2 books at serial nos. 39 & 96 were collected

from the undertaking where the petitioner has signed as received.

The Disciplinary Authority has found that evidence on record shows

that there were monetary benefits in selling test report to the

petitioner.

17. Learned Counsel for the petitioner vehemently submitted

that second part of the petitioner's statement recorded before the

Vigilance Officer was in fact in the handwriting of the Vigilance

Officer and therefore the same cannot be used against him. We

however find that before the Disciplinary Authority, Shri R.D. Kamble

- Vigilance Officer confirmed that the petitioner had signed as

G.B.Patil in the presence of witness Shri Suryavanshi. Shri

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Suryavanshi is also cross examined by the petitioner.

18. The Disciplinary Authority has found that Shri P.J. Pawar

had discontinued the business with BEST undertaking. It was

continued by the petitioner without knowledge of either Shri

P.J.Pawar or undertaking by making bogus signatures. We find no

merit in the submission of the learned Counsel for the petitioner that

statement of the petitioner was recorded under pressure and

coercion. Though the statement of the petitioner was recorded on

01/01/1997, the contention that the same is under coercion and

pressure is raised for the first time sometime in September during the

course of enquiry. The Disciplinary Authority found that the

petitioner's statement is based on documentary evidence and is well

supported by the evidence of witness viz. Shri Suryavanshi. Based on

the materials on record, the Disciplinary Authority came to the

conclusion that the petitioner being a member of the staff of

undertaking was unauthorisedly involved in the business of selling

the test reports. The test reports are submitted to the undertaking

after completion of electrical installation work by the licenced

electrical contractor and hence, the charge of "breach of Indian

Electricity Rules" has been proved. The Disciplinary Authority also

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came to the conclusion based on material on record that the

petitioner was involved in the business of selling the test reports and

therefore, the charge "engaging in other employment whilst still in

service of the undertaking without previous permission of the

General Manager" stands proved. Furthermore the Disciplinary

Authority came to the conclusion that the petitioner used to sign on

test reports as P. J. Pawar LEC and then sell the same to Riyaz for

monetary gains. Thus, the Disciplinary Authority concluded that

charge of fraud and dishonesty with business of undertaking is

proved.

19. In our opinion, the Disciplinary Authority based on the

material on record has come to the conclusion that the charges

against the petitioner stand proved. The petitioner has been given

adequate opportunity to represent himself during the course of the

enquiry and the enquiry is conducted in accordance with the

principles of natural justice. We find that on the basis of the evidence

on record, Disciplinary Authority has come to the conclusion that the

charges are proved and in exercise of our writ jurisdiction under

Article 226 of the Constitution, it is not open for us to re-appreciate

the evidence on record. We do not find any infirmity with the

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findings so recorded. In our opinion, the findings cannot be said to

be perverse so as to warrant interference. The Appellate Authorities

have also considered the Appeals on merit thereby confirming the

order passed by the Disciplinary Authority. In this view of the matter,

we see no reason to interfere with the impugned orders. Writ

Petition is accordingly dismissed with no order as to costs. Rule is

discharged.

 (M.S.KARNIK, J.)                                                     (A.A.SAYED, J.)