Shashikant S/O Babulal Kanhai vs The State Of Mah. Thr. Its Secty. ...
2017 Latest Caselaw 1023 Bom

                                                        1                        wp4508.11.odt

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

                           WRIT PETITION NO.4508/2011

      Shashikant s/o Babulal Kanhai,
      aged 53 years, Occ. Service,
      R/o Main Road, Katangi Line, Gondia.                        .....PETITIONER

                                 ...V E R S U S...

 1. The State of Maharashtra, through
    its Secretary, Department of Revenue,
    Mantralaya, Mumbai-32.

 2. The Divisional Commissioner,
    Nagpur Division, Civil Lines, Nagpur-01.

 3. The Controller, Office of the Collectorate,
      Dist. Gondia.                                               ...RESPONDENTS
 ---------------------------------------------------------------------------------------------------
 Shri D. T. Shinde, Advocate for petitioner.
 Smt. T. Udeshi, Assistant Government Pleader for respondents.
 --------------------------------------------------------------------------------------------------
                                   CORAM:-      SMT. VASANTI A. NAIK AND
                                                  V. M. DESHPANDE, JJ.

DATED :- MARCH 24, 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

01.09.2009, dismissing the original application filed by the

petitioner.

The petitioner was serving as Junior Clerk in the Tahsil

Office at Bhandara when a departmental inquiry was conducted

against the petitioner on three charges, viz:-

                                                2                     wp4508.11.odt

        1)         That on 12.07.1989 at about 1.30 in the noon, the

petitioner called Kamaldas Shingade (Kotwal) in a loud

voice in the verandah of the Tehsil office, pressed the neck

of Kamaldas and quarreled with him.

2) That on 18.07.1989 at about 1.00 in the noon, the

petitioner behaved arrogantly with Tehsildar, Goregaon by

knocking his hand loudly on the table of the Tehsildar,

asking the Tehsildar as to why he called the petitioner as

'Gunda' on 12.07.1989 and threatened the Tehsildar by

saying that the petitioner is the son of a lawyer, that the

petitioner is learning law and that he would teach the

Tehsildar a lesson.

3) That the petitioner, during the office time,

quarreled and misbehaved with the staff."

The inquiry officer came to the conclusion that the

charges 1 and 2 were proved against the petitioner and

accordingly a report was submitted to the Collector, Bhandara

recommending the punishment. The report of the inquiry officer

was accepted by the Collector and by the order dated 27.09.1991,

the punishment of withholding of two annual increments was

imposed on the petitioner. A departmental appeal was filed by the

3 wp4508.11.odt

petitioner against the said order. The Divisional Commissioner,

after hearing the petitioner, set aside the order of the Collector

and remanded the matter to the inquiry officer, Bhandara for a

fresh inquiry after recording the statements of the witnesses and

the petitioner. After holding a fresh inquiry, the inquiry officer

submitted his report to the Collector on 14.11.1995, holding

therein that all the three charges levelled against the petitioner

were proved. Again, the punishment of withholding of two annual

increments was recommended and by the order dated 27.04.1998,

the Collector imposed the punishment of withholding of two

annual increments of the petitioner with permanent effect. The

suspension of the petitioner was also treated as such. The

petitioner filed an appeal before the Divisional Commissioner but

the appeal was dismissed. The petitioner then filed an original

application before the tribunal, that was also dismissed by the

impugned order dated 01.09.2009.

Shri Shinde, the learned counsel for the petitioner

submitted that the tribunal was not justified in dismissing the

original application filed by the petitioner. It is submitted that

after the original application was decided by the tribunal, the

petitioner applied under the Right to Information Act and received

4 wp4508.11.odt

certain documents which could point out that after the remand of

the matter by the appellate authority to the inquiry officer, an

inquiry was conducted and as per the second inquiry report dated

31.12.1994, the petitioner was exonerated of the charges. It is

submitted that if the disciplinary authority did not agree with the

report exonerating the petitioner dated 31.12.1994, it should have

recorded some reasons and granted an opportunity to the

petitioner to reply to the notice of disagreement. The learned

counsel submitted in pursuance of the information secured under

the Right to Information Act that on 30.10.1995 the inquiry officer

that had prepared the report dated 30.10.1995 was appointed but

the petitioner was not made aware of the appointment. The

learned counsel relied on the provisions of Rule 9 (2) of the

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

also the judgment of the Hon'ble Supreme Court reported in 2000

(2) Bom. C. R. 658. It is submitted that in the circumstances of

the case, since the petitioner was exonerated in the second inquiry

by the report dated 31.12.1994, the order of the tribunal as also

the orders of the disciplinary and the appellate authority are liable

to be set aside.

5 wp4508.11.odt

Ms Udeshi, the learned Assistant Government Pleader

for the respondents submitted that the petitioner cannot be

permitted to canvass in this writ petition for the first time that

after the matter was remanded by the appellate authority, an

inquiry was conducted against the petitioner and the petitioner

was exonerated on 31.12.1994. It is stated that after the remand

of the matter by the appellate authority, the inquiry officer had

tendered a report dated 30.10.1995, which holds that all the three

charges levelled against the petitioner are proved. It is submitted

that before the Divisional Commissioner in the second round of

litigation and before the Maharashtra Administrative Tribunal, it is

not the case of the petitioner that the petitioner was exonerated by

the inquiry officer in any of the enquiries and such a ground is

raised by the petitioner for the first time in this writ petition. It is

submitted that the counsel for the petitioner is making a

submission on factual and legal issues that were not addressed

either before the Divisional Commissioner or before the

Maharashtra Administrative Tribunal. It is submitted that the

petitioner is held guilty of serious charges while he was working as

a junior clerk. It is submitted that the petitioner had pressed the

neck of Kotwal Kamaldas after quarreling with him, had knocked

6 wp4508.11.odt

his hand loudly on the table of Tahsildar and had abused and

threatened him. It is submitted that since the conduct of the

petitioner was unbecoming of a Government servant, the

respondents have imposed the punishment on the petitioner. It is

submitted that the tribunal has rightly held that the punishment

imposed upon the petitioner, cannot be said to be disproportionate

to the act of serious misconduct committed by the petitioner. The

learned Assistant Government Pleader sought for the dismissal of

the writ petition.

On hearing the learned counsel for the parties, we find

that there is no scope for interference with the impugned order in

exercise of the writ jurisdiction. For the first time before this

Court, the petitioner is trying to state several facts that were not

stated either before the Divisional Commissioner or before the

Maharashtra Administrative Tribunal. Since, the order of the

tribunal is impugned in this petition, it would be necessary to

consider whether the tribunal was justified in passing the order

that is impugned, on the basis of the material available on record.

The material available before the Additional Commissioner as well

as the tribunal consisted of only two inquiry reports that is the first

inquiry report holding that the petitioner was guilty of two charges

7 wp4508.11.odt

levelled against him and the second inquiry report holding that the

petitioner was guilty of all the three charges levelled against him.

We find that the charges levelled against them are extremely grave

and serious. As rightly submitted on behalf of the respondents,

the acts on the part of the petitioner are unbecoming of a

Government servant. If the petitioner was really desirous of

securing the material that could have resulted in proving the

innocence of the petitioner before the Divisional Commissioner or

the tribunal, the petitioner should have diligently sought the

information under the Right to Information Act that has come into

force in the year 2005. The original application was decided by

the tribunal in the year 2011. Till the original application was

decided the Maharashtra Administrative Tribunal in September-

2011, the petitioner did not take any steps to apply under the

Right to Information Act. We cannot consider the documents

placed by the petitioner in this court to be sacrosanct. In any case,

if the petitioner really was of the view that there was something

more to the matter than was placed by him before the tribunal, he

ought to have sought the information during the period from 2005

to 2011. Six years time is wiled away by the petitioner before the

tribunal till the tribunal has decided the matter. The petitioner

8 wp4508.11.odt

has retired from service after attaining the age of superannuation

and has received the retiral benefits. In the circumstances of the

case, we are not inclined to remand the matter to the tribunal to

redecide the matter at this stage, specially when the petitioner was

not diligent in prosecuting the matter. In any case, the

submissions that are made on behalf of the petitioner for the first

time are not admitted by the learned Assistant Government

Pleader. The judgment reported in 2000 (2) Bom C. R. 658 and

relied on by the learned counsel for the petitioner cannot be made

applicable to the case in hand.

In the result, the writ petition fails and it is dismissed

with no order as to costs.

(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.)

kahale