The State Of Maharashtra Thr. Its ... vs Subhash Baliramji Makode
2017 Latest Caselaw 1291 Bom

WP  1866/13                                            1                           Judgment

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

                       WRIT PETITION No. 1866/2013

1.    The State of Maharashtra,
      through its Secretary,
      Department of Home,
      Mantralaya, Mumbai - 400 032.

2.    Additional Director General of Police,
      (Administration), Maharashtra State,
      Mumbai.                                                                    PETITIONERS
                                      .....VERSUS.....

Subhash Baliramji Makode,
Aged about 49 yrs., presently working as 
Police Inspector at Police Station, Akot,
Dist. Akola, R/o Police Quarters, 
Near Police Station, Akot, Dist. Akola..                                            RESPONDENT



            Shri A.M. Joshi, Assistant Government Pleader for the petitioners.
                       Shri S.G. Joshi, counsel for the respondent.



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

DATE : 30 TH MARCH, 2017.

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

By this writ petition, the petitioners-State of Maharashtra and

the Additional Director General of Police challenge the order of the

Maharashtra Administrative Tribunal, dated 31.08.2012 allowing an

original application filed by the respondent and setting aside the orders of

the disciplinary and the appellate authority, withholding the increments

of the respondent for a period of three years.

WP 1866/13 2 Judgment

2. The respondent was appointed as a Police Constable by the

Additional Director General of Police in the year 1980. The respondent

was promoted as a Police Sub-Inspector in the year 1988 and was

transferred to Risod in the year 1997. According to the petitioners on

15.08.1999, the respondent wrongfully accepted a sum of Rs.11,000/-

from one Sunil Randal but, did not make an entry in respect of the

acceptance of the said amount in the official records. According to the

petitioners, though the amount was seized from the pocket of Sunil

Randal after he was arrested under the provisions of the Bombay

Prohibition Act, the respondent failed to make an entry in that regard. In

the dying declaration of Sunil Randal, he had stated that though he was

asking the respondent to return the said amount of Rs.11,000/- to him,

the respondent refused to do so, as a result of which, Sunil Randal had

committed suicide. The respondent was prosecuted for the offences

punishable under Sections 306, 325, 201, 403 read with Section 34 of the

Indian Penal Code. The offence under Section 403 for misappropriating

the amount of Rs.11,000/- was compounded in the criminal trial under

Section 320 of the Code of Criminal Procedure after the respondent paid

the sum of Rs.11,000/- to the legal heirs of Sunil Randal. The trial Court

acquitted the respondent by the judgment dated 31.08.2006. In the

meanwhile, a departmental enquiry was conducted against the

respondent on the charge of accepting a sum of Rs.11,000/- from Sunil

Randal and the misappropriation thereof by not making an entry in

WP 1866/13 3 Judgment

respect of the said amount in the official record. According to the charge

levelled against the respondent, since the respondent had not returned

the amount of Rs.11,000/- to Sunil Randal, he had committed suicide.

The charge levelled against the respondent was held to be proved in the

departmental enquiry. The disciplinary authority imposed the

punishment of withholding the increments of the respondent for a period

of three years. The respondent challenged the said order of the

Additional Director General of Police before the appellate authority. The

appellate authority dismissed the appeal filed by the respondent. The

respondent challenged the said order before the Maharashtra

Administrative Tribunal. The Maharashtra Administrative Tribunal

allowed the original application filed by the respondent solely on the

ground that the petitioners could not have conducted the departmental

enquiry against the respondent on the same set of facts and circumstances

on the basis of which the respondent was prosecuted in the criminal trial

and ultimately acquitted. While holding so, the Maharashtra

Administrative Tribunal relied on the judgment of the Hon'ble Supreme

Court reported in AIR 1999 SC 1416. The order of the Tribunal is

challenged by the State Government in this writ petition.

3. Shri Ambarish Joshi, the learned Assistant Government

Pleader appearing for the petitioners, submitted that the Tribunal

committed a serious error in holding that the facts, circumstances and the

WP 1866/13 4 Judgment

witnesses involved in the criminal trial were also a matter in the

departmental enquiry that was conducted against the respondent. It is

submitted that the charge levelled against the respondent in the

departmental enquiry was of having misappropriated a sum of

Rs.11,000/- after accepting the sum from Sunil Randal and not making a

note of the same in the official record. It is submitted that the respondent

was prosecuted in respect of an offence punishable under Section 403 of

the Penal Code, and the offence was compounded after the respondent

paid a sum of Rs.11,000/- to the legal heirs of Sunil. It is submitted that

merely because it is held by the criminal Court that the offence

punishable under Section 306 of the Penal Code was not proved against

the respondent, the Tribunal was not justified in holding that the

petitioners could not have initiated a departmental enquiry against the

respondent. The learned Assistant Government Pleader took this Court

through paragraph 7 of the judgment of the Criminal Court to point out

that the criminal Court has held that the respondent had withheld the

amount of Rs.11,000/- that was secured by him from Sunil Randal. It is

further stated by referring to the observations in the said paragraph that

the acquittal of the respondent in the criminal case is not a clean

acquittal, more so, when the criminal Court has observed that even an

officer subordinate to the respondent in the police force had deposed

against the respondent in the trial. It is submitted that in the

circumstances of the case, the judgment rendered by the Hon'ble Supreme

WP 1866/13 5 Judgment

Court could not have been applied by the Tribunal to the facts of this

case. In any case, it is submitted that the Tribunal failed to consider the

various limbs of the charges that were levelled against the respondent in

the departmental proceedings. It is submitted that the observation of the

Tribunal that since there was no iota of difference or distinction between

the matter in the departmental proceedings and the criminal case, the

petitioners could not have initiated the departmental enquiry against the

respondent is not sustainable. It is submitted that since the charge

proved against the respondent is serious, it could not be said that the

petitioners have committed any error in withholding the increments of

the respondent for a period of three years.

4. Shri Sumit Joshi, the learned counsel for the respondent,

supported the order of the Tribunal. It is submitted that the Tribunal has

recorded a finding that the entire matter in the proceedings in the

departmental enquiry and the criminal case was almost identical and

there was no iota of difference between the same. It is stated that the

Tribunal was justified in placing reliance on the judgment of the Hon'ble

Supreme Court reported in AIR 1999 SC 1416 for holding that the

petitioners were not entitled to initiate and continue the departmental

enquiry against the respondent after the respondent was acquitted in the

criminal trial. It is submitted that in view of the provisions of Section

320(8), the composition of an offence under this section would have the

WP 1866/13 6 Judgment

effect of the acquittal of the accused. It is submitted that since the order

of the Tribunal is based on the well settled principle of law, the writ

petition is liable to be dismissed.

5. On hearing the learned counsel for the parties, it appears that

the Tribunal was not justified in interferring with the orders of the

disciplinary and the appellate authority in the circumstances of the case.

The charge levelled in the departmental enquiry was in respect of the

misappropriation of the amount of Rs.11,000/- by the respondent that

was recovered by him from Sunil Randal and of which an entry was not

made in the official record. The other limb of the charge was that the

respondent did not return the amount of Rs.11,000/- to Sunil, as a result

of which Sunil had committed suicide. The respondent was prosecuted

for an offence punishable under Section 403 and 306 of the Penal Code.

We have perused the judgment of the Sessions Court, dated 31.08.2006.

In paragraph 7 of the judgment, which is the main paragraph in which

the evidence of the witnesses is scanned and appreciated, it appears that a

'benefit of doubt' is granted to the respondent though those specific words

are not used in the judgment. In paragraph 7, it is observed by the

Sessions Court that a police officer who was subordinate to the

respondent had tendered evidence against the respondent and unless

there was some truth in it, the witness would not have deposed against

the respondent. It was further observed by the Sessions Court that it

WP 1866/13 7 Judgment

could be said that the brother and the wife of Sunil Randal were under

the fear of the accused-respondent, who was a police officer and,

therefore, they had stated that deceased Sunil was addicted to liquor. It

was observed by the Sessions Court that the respondent had withheld the

amount of Rs.11,000/- that was recovered from Sunil but, he could have

hardly contemplated or imagined that the act of his withholding the

amount would lead the deceased to commit suicide. After making the

aforesaid observations, the Sessions Court has observed that the evidence

of Narayansingh, the police officer that had deposed against the

respondent, was not helpful to the prosecution and all the other witnesses

of the prosecution had turned hostile. It is apparent from the

observations made by the Sessions Court that the acquittal of the

respondent was not a clean acquittal and a benefit of doubt was extended

to him. Also, though the offence under Section 403 is compounded as the

respondent had paid the sum of Rs.11,000/- to the legal heirs of Sunil, it

is apparent from the judgment of the Sessions Court that the Sessions

Court had found that the respondent had withheld the amount of

Rs.11,000/- that was recovered from Sunil. In the circumstances of the

case, it cannot be said that the petitioners could not have initiated a

departmental enquiry against the respondent and that there was no iota

of difference between the matter in the criminal prosecution and the

departmental proceedings. The judgment of the Hon'ble Supreme Court,

reported in AIR 1999 SC 1416 is distinguishable on facts. In the matter

WP 1866/13 8 Judgment

before the Hon'ble Supreme Court, the charges framed against the

appellant therein in the departmental proceedings and the criminal trial

were identical and the police officers and the panch witnesses that had

raided the house of the appellant therein were the witnesses in both the

matters. The prosecution witnesses in the criminal trial and the

departmental proceedings were not the same in this case. We do not find

any fault with the action on the part of the petitioners of commencing the

departmental proceedings against the respondent. Further, we do not

find that the punishment imposed upon the respondent is

disproportionate to the act of misconduct committed by him. The

Tribunal has committed an error in interferring with the orders of the

disciplinary and the appellate authority.

6. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order is quashed and set aside. The original application

filed by the respondent stands dismissed.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                        JUDGE

APTE