Kashinath Ramdas Dewang vs State Of Maharashtra,Thr.Secty. ...
2017 Latest Caselaw 2727 Bom

WP  4668/03                                         1                             Judgment

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

                       WRIT PETITION No. 4668/2003

Kashinath Ramdas Dewang,
aged about : 68 years, 
resident of House No.108,
Ashok Nagar, Lakhani,
District Bhandara.                                                           PETITIONER

                                   .....VERSUS.....

1.    State of Maharashtra,
      through the Secretary to Government,
      Agriculture & Co-Operation Department,
      (A.D.F.), Maharashtra, Mumbai-400 032.

2.    State of Maharashtra,
      through the Secretary to Government,
      General Administration Department,
      Maharashtra, Mumbai-400 032.                                            RESPONDENTS

                    Shri M.M. Sudame, counsel for the petitioner.
     Shri K.L. Dharmadhikari, Assistant Government Pleader for the respondents.

                                    CORAM :SMT.VASANTI  A  NAIK AND
                                                MRS. SWAPNA  JOSHI, JJ.    

DATE : 5 TH JUNE, 2017.

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

By this writ petition, the petitioner challenges the order

of the Maharashtra Administrative Tribunal, Nagpur, dated 28.04.2003

dismissing the original application filed by the petitioner and

upholding the order of the State Government imposing the punishment of

stoppage of next increment of the petitioner for a period of two years

with cumulative effect as also the order compulsorily retiring him from

service.

WP 4668/03 2 Judgment

2. The petitioner was initially appointed as a Procurement

Supervisor. The petitioner was promoted from time to time and at the

relevant time, when the petitioner was charge-sheeted, he was working as

an Assistant Project Officer, Sangli. The petitioner was suspended by an

order dated 02.01.1982 and disciplinary proceedings were initiated

against him. As per the charge-sheet dated 29.03.1982, as many as twelve

charges were levelled against the petitioner. The enquiry officer conducted

an enquiry and came to a conclusion that most of the charges levelled

against the petitioner were proved. The punishment of stoppage of his

next increment for two years with cumulative effect was proposed. A

show cause notice was served on the petitioner and after considering the

reply of the petitioner, by the impugned order dated 03.10.1985, the next

increment of the petitioner was stopped for a period of two years. By a

separate order dated 12.04.1988, the suspension period of the petitioner

was treated as suspension period. The petitioner was compulsorily retired

from service by the order dated 19.02.1987. The petitioner challenged

the order of his retirement in a writ petition before the High Court. The

writ petition was, however, dismissed. The petitioner then filed the

original application challenging the orders of stoppage of his increment,

treating the period of suspension as suspension period and the order of

his retirement. The Tribunal, on an appreciation of the material on

record, dismissed the original application filed by the petitioner. The order

of the Tribunal is impugned in the instant petition.

WP 4668/03 3 Judgment

3. Shri Sudame, the learned counsel for the petitioner,

submitted that the Tribunal has failed to consider the submission of the

petitioner that the findings of the enquiry officer are perverse. It is

submitted that the enquiry was conducted jointly against several officers

and the charges were not separately proved against the petitioner. It is

submitted that the petitioner was not granted an opportunity to appeal

against the order of stoppage of his two increments. It is submitted that

the petitioner was not served with an enquiry report and, hence, the

order of stoppage of increments is liable to be set aside.

4. Shri Dharmadhikari, the learned Assistant Government

Pleader appearing for the State Government, has supported the order of

the Maharashtra Administrative Tribunal. It is submitted that the

Tribunal has rightly considered the submissions made on behalf of the

petitioner. It is submitted that the petitioner had not argued before the

Tribunal that the findings of the enquiry officer are perverse as the said

submission does not find place in the order of the Tribunal. It is stated

that even otherwise, on a perusal of the enquiry report, it could be

revealed that the findings of the enquiry officer are not perverse and are

based on the evidence tendered by the respondents. It is submitted that

this is not a case of 'no evidence' and on the basis of the evidence on

record, the enquiry officer has rightly found that most of the charges

levelled against the petitioner were proved. It is submitted that a finding

WP 4668/03 4 Judgment

of fact was recorded by the Tribunal that the enquiry was conducted in a

fair and proper manner and the principles of natural justice were not

violated. It is submitted that in view of the law laid down by the Hon'ble

Supreme Court in the judgment reported in (1993) 4 SCC 727

(Managing Director, ECIL, Hyderabad & Others Versus B. Karunakar &

Others), the order of punishment cannot be vitiated only because the

enquiry report was not served on the petitioner. It is submitted that since

the order, dated 30.10.1985 was passed by the Governor and the Hon'ble

Governor is the highest authority to which an appeal or revision could be

made, there was no scope for challenging the order of the Governor in an

appeal or revision. It is submitted that all the aspects of the matter are

rightly considered by the Tribunal before dismissing the original

application filed by the petitioner.

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

perusal of the impugned order, it appears that there is no scope for

interference with the impugned order in exercise of the writ jurisdiction.

It appears that the enquiry was conducted against the petitioner in a fair

and proper manner and the principles of natural justice were not violated.

Ample evidence was tendered on behalf of the respondents to prove the

charges against the petitioner. Most of the charges levelled against the

petitioner are proved. The charges are grave and serious. It is held by

the enquiry officer that the petitioner was totally negligent in the

WP 4668/03 5 Judgment

performance of his duties. The Tribunal has considered the enquiry

report and has held that the Tribunal cannot sit in appeal over the

findings of enquiry officer. The Tribunal has rightly held that the findings

could be reversed only if they are perverse. The Tribunal has considered

the enquiry report and has found that the findings recorded by the

enquiry officer are based on the evidence on record. Though the learned

counsel for the petitioner stated that a submission was made on behalf of

the petitioner in regard to the perversity of the findings recorded by the

enquiry officer, we do not find that the submission is made by the

petitioner before the Tribunal. Paragraph 5 of the order of the Tribunal

records the submissions made on behalf of the petitioner. In the longish

paragraph, though the Tribunal has recorded several submissions made

on behalf of the petitioner, we do not find any submission pertaining to

the perversity of the findings recorded by the enquiry officer. It is well

settled that it would not be permissible for a party to canvas before the

superior Court that the subordinate Court or Tribunal has not considered

the submissions made on behalf of the said party though those

submissions do not find place in the order of the Court or the Tribunal. It

is well settled that in such a situation it would be necessary for the party

to approach before the same Court or Tribunal and register its grievance

about its failure to record the submission made by the party, in the order.

Be that as it may, we find on a perusal of the enquiry report that the

WP 4668/03 6 Judgment

findings of the enquiry officer are not perverse and they are based on the

evidence tendered by the respondents.

6. Likewise, we also do not find any merit in the submission

made on behalf of the petitioner that the petitioner was not granted an

opportunity to file an appeal or revision against the order of stoppage of

the increment for two years with cumulative effect. On a reading of the

provisions of Rule 25 and 25-A of the Maharashtra Civil Services

(Discipline and Appeal) Rules, 1979, it is clear that an appeal or revision

could be filed before the Governor or any other authority subordinate to

the Governor. In this case, the order of stoppage of increment was passed

by the Governor and therefore, there was no question of challenging the

order in an appeal or revision under the Rules. The Tribunal was justified

in holding that no appeal would lie against the order of stoppage of

increment as it was passed by the Governor. Also, we find that several

charges are separately proved against the petitioner and there is no merit

in the submission that the charges are not so proved. The Tribunal had

rightly considered the judgment in the case of Managing Director, ECIL

Hyderabad Versus B.Karunakar and Others reported in (1993) 4 SCC

727 to hold that the disciplinary proceedings in the case of the petitioner

could not have been reopened only because the enquiry report was not

furnished to the petitioner. The Tribunal considered the decision of the

Hon'ble Supreme Court in the case of B.Karunakar and others to hold that

WP 4668/03 7 Judgment

the order of punishment imposed on the petitioner could not have been

set aside on the ground that the enquiry report was not furnished to the

petitioner as the order of punishment in the case of the petitioner was

passed before the decision was rendered by the Hon'ble Supreme Court in

the case of Union of India & Others Versus Mohd.Ramzan Khan reported

in (1991) 1 SCC 588. As the said finding is based on the decision of the

Constitution Bench of the Hon'ble Supreme Court in the case of

B.Karunakar and others, there is hardly any scope for interference with

the same.

7. 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