Mayaram Sahajram Sadhwani vs Municipal Council, Karanja & ...
2017 Latest Caselaw 3358 Bom

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

                   Writ Petition No.3037 of 1998


  Mayaram s/o Sahajram Sadhwani,
  Aged about 47 years,
  R/o Karanja, Distt. Akola.                       ... Petitioner


        Versus


  1. Municipal Council,
     Karanja, through its Chief Officer,
     Tahsil Karanja, Distt. Akola.

  2. Regional Director of Municipal
     Administration and Additional
     Commissioner, 
     Amravati Division, Amravati.                  ... Respondents


  Petitioner in person.
  Shri D.M. Surjuse, Advocate for Respondent No.1.
  Shri   N.S.   Rao,   Assistant   Government   Pleader   for   Respondent 
  No.2.

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

th Dated : 20 June, 2017

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

1. The petitioner was working as Octroi Superintendent in

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the services of Municipal Council, Karanja, in the scale of

Rs.1200-2040 with effect from 21-7-1995. By an order

dated 29-9-1997, he was reverted to the post of Naka Moharir in

the scale of Rs.950-1500 on the basis of the report submitted by

the Enquiry Officer on 25-6-1997, holding the petitioner guilty of

certain charges of misconduct levelled against him. This order

was the subject-matter of challenge in Appeal No.11 of 97-98 of

Karanja before the Additional Commissioner and Regional

Director of Municipal Administration, Amravati Division,

Amravati, who dismissed it on 30-6-1998. Hence, both the

orders dated 29-9-1997 and 30-6-1998 are the subject-matter of

challenge in this petition.

2. The undisputed factual position can be narrated first.

The petitioner was initially appointed as Octroi Inspector in the

year 1971 and was thereafter promoted to the post of Senior

Clerk on 12-1-1994. He was thereafter promoted to the post of

Octroi Superintendent with effect from 21-7-1995, where he

worked till 31-1-1996. Thereafter he was transferred to the post

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of Senior Clerk on 2-2-1996. It seems that there was a stay

granted to the said transfer by the Industrial Court on 9-2-1996,

which was confirmed on 24-4-1996. The Municipal Council

challenged this order by filing Writ Petition No.1305 of 1997,

which was dismissed on 10-10-1997.

3. The petitioner was placed under suspension by an order

dated 7-6-1996 with effect from 10-6-1996 and he continued

under suspension till 1-4-1997 when he was reinstated. He was

served with the charge-sheet and statement of allegations on

29-9-1996. The petitioner was charged for negligence in

performance of duties, misuse of power, insubordination, causing

loss to the Municipal Council, and dereliction of duties. One

V.S. Gote was appointed as Enquiry Officer and another

D.D. Dakode was appointed as Presenting Officer. In Complaint

(ULP) No.221 of 1997 filed by the petitioner, several orders were

passed by the Industrial Court, and the order dated 7-5-1997

being relevant, is reproduced below :

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" Heard the Complainant and Shri Pinjarkar Adv. Only objection raised by the Complaint are that the enquiry Officer and presenting Officer and presenting Officers Shri V.S. Gote and D.D. Dakode are prejudiced against him. Hence in the interest of justice N.A. is directed to appoint other impartial persons as enquiry and presenting Officer and then to proceed with D.E. subject to this direction earlier stay to D.E. is hereby vacated."

In view of the aforesaid order, the Municipal Council appointed

one R.S. Rawle as Enquiry Officer to conduct the enquiry in

respect of the charges levelled against the petitioner, and

another Abdul Gani Sheikh Munir as Presenting Officer after

7-5-1997.

4. R.S. Rawle commenced enquiry with effect from

14-6-1997, the petitioner filed a specific objection on the same

day for change of Enquiry Officer on the ground that

both R.S. Rawle and Abdul Gani Sheikh Munir were working

under him, and this was done with a prejudiced mind. Without

prejudice to his right to participate in the enquiry, the petitioner

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submitted his reply on 20-6-1997. The petitioner filed an

application before the Enquiry Officer on 21-6-1997 for

cross-examination of witness, which was rejected. The Enquiry

Officer submitted his report on 25-6-1997, on which the

petitioner was issued a show cause notice dated 12-9-1997 for

imposing the punishment of reversion. The petitioner submitted

his initial reply on 12-9-1997 and thereafter on 30-9-1997. The

order impugned reverting the petitioner from the post of Octroi

Superintendent to the post of Senior Clerk was passed on

29-9-1997. The reply filed by the petitioner on 30-9-1997 was

obviously not taken into consideration.

5. With the assistance of the learned counsels appearing for

the parties, we have gone through the memo of Appeal

No. 11/97-98 of Karanja, filed under Section 79 of the

Maharashtra Municipalities Act, 1965. The specific challenges

raised to the orders impugned as well as holding of enquiry can

be narrated in brief as under :

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(a) R.S. Rawle, the Enquiry Officer, and Abdul Gani Sheikh Munir, the Presenting Officer, were juniors, working as Naka Moharir and subordinates to the petitioner, who was working as Octroi Inspector, and both of them were put under suspension on some charges by the Municipal Council. There were some differences of the petitioner with them and, therefore, they could not have been appointed either as Enquiry Officer or as Presenting Officer. Immediately upon receiving of notice of enquiry, an objection was raised on 14-6-1997 to their appointments, which was not considered.

(b) We also find from the notes of argument by the petitioner that at the time of appointment as Enquiry Officer, R.S. Rawle was working as Tax Inspector and the petitioner was working as Octroi Superintendent.

(c) The petitioner moved an application for supply of the copies of relevant documents and made a request on 14-6-1997 and 19-6-1997 for time to submit his reply to the charge-sheet. A reminder was also given on 20-6-1997. But those documents were not supplied to the petitioner.

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              (d)        On   21-6-1997,   the   petitioner   moved   an 

application and requested the Enquiry Officer to give him a chance to cross-examine the witnesses, who were examined in earlier enquiry by V.S. Gote on 13-3-1997 behind his back and also to allow him to examine his defence witnesses. But this was denied to him.

(e) There was no agenda on the meeting of the General Body of the Municipal Council, said to have been held on 29-7-1997, to pass a resolution imposing punishment of reversion upon the petitioner even before show cause notice of punishment was issued to the petitioner on 12-9-1997.

(f) On 22-9-1997, the petitioner was supplied with the copies of enquiry report submitted by the Enquiry Officer and also the resolution passed by the General Body of the Municipal Council, but those copies supplied were not legible.

The aforesaid grounds are also repeated in the present

petition by way of amendment carried out on 10-12-1998 as per

the order passed by the Division Bench on 8-12-1998. One more

ground was raised that the members of the Municipal Council,

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including the seconder of the resolution dated 29-7-1997, made

a complaint in writing that no such resolution was passed in the

meeting on 29-7-1997 and it was a false and wrong entry in

minutes book.

6. We have gone through the reply filed by the respondents

to the memo of appeal. Except denying the fact that the

petitioner was not supplied documents and submitting that he

was supplied all the documents, we do not find reply to all the

aforesaid averments made in the memo of appeal. We have also

gone through the return filed by the respondents in response to

the present petition. We do not find that the averments made in

the petition are refuted except saying that on 15-6-1997, the

time was granted to the petitioner to file reply and he did not

produce the list of witnesses to be examined in his favour and for

cross-examination of the witnesses of the Municipal Council.

Even in the additional return filed on 30-4-2015, we do not find

denial of the aforesaid averments. None of the aforesaid points

raised by the petitioner in the memo of appeal have been dealt

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with in the order passed by the Additional Commissioner,

impugned in this petition.

7. In view of the aforesaid factual position, we have no

hesitation to hold that the enquiry in question stood vitiated on

the ground that the Enquiry Officer R.S. Rawle was junior to the

petitioner and, therefore, could not have been appointed to

conduct an enquiry against the petitioner. We also find that after

appointment of R.S. Rawle as Enquiry Officer, there is nothing

on record to show that any witnesses were examined by the

Municipal Council or any opportunity was given to the petitioner

to examine and cross-examine the witnesses. The enquiry

conducted was with undue haste. The charge-sheet and

statement of allegations were issued on 29-6-1996.

R.S. Rawle was appointed as Enquiry Officer after 7-5-1997. The

petitioner raised an objection to the appointment of Enquiry

Officer on 14-6-1997. He submitted his reply on 20-6-1997. On

the report dated 25-6-1997 submitted by the Enquiry Officer, the

action of reversion of the petitioner was taken on 29.09.1997.

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We find that the entire enquiry proceedings are vitiated and

ultimately the report of enquiry and the punishment based

thereupon cannot be sustained. The Additional Commissioner,

who dealt with the appeal of the petitioner, failed in his duty to

consider the ground of challenges raised by the petitioner. The

order passed by the Additional Commissioner also cannot,

therefore, be sustained.

8. The petitioner, appearing in person, has made a

grievance that though it was shown that he was working on the

post of Octroi Superintendent in the scale of Rs.1200-2040/-, in

fact there was a resolution passed by the Municipal Council in its

meeting held on 21-6-1990 to provide a revised scale of

Rs.1400-2600/- to the post of Octroi Superintendent with effect

from 1-6-1990. Our attention is also invited to the

communication from the office of the Assistant Director,

Municipal Administration, Mumbai, addressed to the Chief

Officer, Municipal Council, Karanja, stating that the petitioner's

revised pay of Rs.1400-2600/- cannot be made available in view

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of the circular of the Director of Municipal Administration issued

on 14-12-2011. We are at loss to know what exactly this

circular/letter dated 14-12-2011 says, as the same is not placed

on record by the respondents. We are, therefore, unable to

know the reasons for denying the petitioner the scale of

Rs.1400-2600 with effect from 1-6-1990. In view of this, we will

have to direct the Regional Director of Municipal Administration,

who is respondent No.2 herein, to reconsider such issue of

availability of revised pay scale to the petitioner with effect from

1-6-1990 afresh and to pass appropriate reasoned order

accordingly within the stipulated period.

9. In the result, we partly allow this writ petition by

quashing and setting aside the order of reversion

dated 29-9-1997 at Annexure-O to the petition, whereby the

petitioner was reverted from the post of Octroi Superintendent

to the post of Naka Moharir from the scale of Rs.1200-2040 to

scale of Rs.950-1500/-. We also set aside the order

dated 30-6-1998 passed in Appeal No. 11 of 97-98 of Karanja by

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the Additional Commissioner, Amravati Division, Amravati.

10. By way of interim order, this Court had protected the

petitioner in the post of Octroi Superintendent. According to

the respondent-Municipal Council, the petitioner has retired

from service with effect from 31-7-2004 on attaining the age of

58 years. We have also remanded the issue of date of birth of

the petitioner to be considered by the Regional Director of the

Municipal Administration in appeal under Section 318 of the

said Act. Hence, leaving that dispute aside, we direct the

respondents to make the petitioner available all the benefits,

including the increments and allowances, etc., as are available to

him in law, on the post of Octroi Superintendent till the date of

his attaining the age of superannuation. The benefits be

calculated including interest, if any, permissible in law and be

paid to the petitioner within a period of six months from today.

11. All other points, which are raised in the application for

amendment, which are pending for adjudication, are left open to

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be agitated by filing separate proceedings. The applications, if

any, stand disposed of.

12. Rule is made absolute in above terms. No order as to

costs.

                             JUDGE.                                   JUDGE.



   Lanjewar/Jalit